House Bill 0995 (ER): Relating to Condominiums

STATE REPRESENTATIVE JULIO ROBAINA

H995    GENERAL BILL by Robaina (CO-SPONSORS) L. Garcia; Gibbons; Roberson

(Similar S 2084, Compare H 0679, S 2086)

 

02/19/08 HOUSE Filed
02/28/08 HOUSE Referred to Safety & Security Council; Policy & Budget Council
03/04/08 HOUSE Introduced, referred to Safety & Security Council; Policy & Budget Council 
03/05/08 HOUSE Referred to Courts (SS) by Safety & Security Council
03/10/08 HOUSE On Committee agenda-- Courts (SS), 03/12/08, 8:00 am, 212-K
03/12/08 HOUSE Favorable with 1 amendment(s) by Courts (SS); YEAS 6 -- NAYS 0

04/09/08 HOUSE CS by Safety & Security Council; YEAS 13 NAYS 0
04/11/08 HOUSE On Council agenda-- Policy & Budget Council, 04/15/08, 9:00 am, 212-K --
                 If received; Referred to- Calendar -HJ 00514
04/16/08 HOUSE Placed on Special Order Calendar; Read 2nd time; Amendment(s)
                 adopted

04/16/08 HOUSE  Read 2nd time

04/18/08 HOUSE  Read 3nd time

04/18/08  HOUSE    CS passed as amended; YEAS 110, NAYS 0

04/23/08 SENATE Substituted for CS/CS/SB 2084 Wednesday, April 23, 2008 2:36 PM 

04/23/08 SENATE Read 2nd time Wednesday, April 23, 2008 2:36 PM 

04/24/08 SENATE Read 3rd time Thursday, April 24, 2008 11:12 AM 

04/24/08 SENATE CS passed; YEAS 40 NAYS 0 Thursday, April 24, 2008


1
A bill to be entitled
2 An act relating to community associations; amending s.
3 468.431, F.S.; defining the term "community association
4 management firm"; redefining the term "community
5 association manager" to apply only to natural persons;
6 amending s. 468.4315, F.S.; revising membership criteria
7 for members of the Regulatory Council of Community
8 Association Managers; requiring the council to establish a
9 public education program; providing for council members to
10 serve without compensation but be entitled to receive per
11 diem and travel expenses; providing responsibilities of
12 the council; amending s. 468.432, F.S.; providing for the
13 licensure of community association management firms;
14 providing application, licensure, and fee requirements;
15 providing for the cancellation of the license of a
16 community association management firm under certain
17 circumstances; providing that such firm or similar
18 organization agrees that, by being licensed, it shall
19 employ only licensed persons providing certain services;
20 amending s. 468.433, F.S.; providing for the refusal of an
21 applicant certification under certain circumstances;
22 amending s. 468.436, F.S.; requiring the Department of
23 Business and Professional Regulation to investigate
24 certain complaints and allegations; providing complaint
25 and investigation procedures; providing grounds for which
26 disciplinary action may be taken; amending s. 718.111,
27 F.S.; providing that a director of the association who
28 abstains from voting on any action taken on any corporate
29 matter shall be presumed to have taken no position with
30 regard to the action; providing duties of officers,
31 directors, and agents of a condominium association and
32 liability for monetary damages under certain
33 circumstances; providing that a person who knowingly or
34 intentionally fails to create or maintain, or who defaces
35 or destroys certain records, is subject to civil penalties
36 as prescribed by state law; requiring that a copy of the
37 inspection report be maintained as an official record of
38 the association; requiring official records of the
39 association to be maintained for a specified minimum
40 period and be made available at certain locations and in
41 specified formats; providing that any person who knowingly
42 or intentionally defaces, destroys, or fails to create or
43 maintain accounting records is subject to civil and
44 criminal sanctions; prohibiting accessibility to certain
45 personal identifying information of unit owners by fellow
46 unit owners; requiring that the Division of Florida Land
47 Sales, Condominiums, and Mobile Homes of the Department of
48 Business and Professional Regulation adopt certain rules;
49 requiring certain audits and reports to be paid for by the
50 developer if done before control of the association is
51 turned over; restricting a condominium association from
52 waiving a financial report for more than a specified
53 period; amending s. 718.112, F.S.; prohibiting a voting
54 interest or a consent right allocated to a unit owner from
55 being exercised under certain circumstances; requiring the
56 board to address certain agenda items proposed by a
57 petition of a specified percentage of the unit owners;
58 providing requirements for the location of annual unit
59 owner meetings; revising terms of service for board
60 members; prohibiting certain persons from serving on the
61 board; requiring the association to provide a
62 certification form to unit owners for specified purposes;
63 authorizing an association consisting of a specified
64 maximum number of units to provide for different voting
65 and election procedures in its bylaws by affirmative vote
66 of a majority of the association's voting interests;
67 revising requirements related to the annual budget;
68 requiring proxy questions relating to reserves to contain
69 a specified statement; providing for the removal of board
70 members under certain circumstances; requiring that
71 directors who are delinquent in certain payments owed in
72 excess of certain periods of time be suspended from office
73 or deemed to have abandoned their offices; requiring that
74 directors charged with certain offenses involving an
75 association's funds or property be suspended from office
76 pending resolution of the charge; providing for the
77 reinstatement of such officers or directors under certain
78 circumstances; amending s. 718.1124, F.S.; providing that
79 any unit owner may give notice of his or her intent to
80 apply to the circuit court for the appointment of a
81 receiver to manage the affairs of the association under
82 certain circumstances; providing a form for such notice;
83 providing for the delivery of such notice; providing
84 procedures for resolving a petition submitted pursuant to
85 such notice; requiring that all unit owners be provided
86 written notice of the appointment of a receiver; amending
87 s. 718.113, F.S.; providing a statement of clarification;
88 authorizing the board to install certain hurricane
89 protection; prohibiting the board from installing
90 hurricane shutters under certain circumstances; providing
91 for the maintenance, repair, and replacement of hurricane
92 shutters or other hurricane protection; providing that a
93 vote of the owners is not required under certain
94 conditions; prohibiting a board from refusing to approve
95 the installation or replacement of hurricane shutters by a
96 unit owner under certain conditions; requiring that the
97 board inspect certain condominium buildings and issue a
98 report thereupon; providing an exception; prohibiting the
99 board from refusing a request for reasonable accommodation
100 for the attachment to a unit of religious objects meeting
101 certain size specifications; amending s. 718.115, F.S.;
102 providing the expense of installation, replacement,
103 operation, repair, and maintenance of hurricane shutters
104 or other hurricane protection shall constitute either a
105 common expense or shall be charged individually to the
106 unit owners under certain conditions; amending s. 718.117,
107 F.S.; requiring that all unit owners be provided written
108 notice of the appointment of a receiver; providing for the
109 delivery of such notice; amending s. 718.121, F.S.;
110 providing requirements and restrictions for liens filed by
111 the association against a condominium unit; providing for
112 notice and delivery thereof; creating s. 718.1224, F.S.;
113 prohibiting strategic lawsuits against public
114 participation; providing legislative findings and intent;
115 prohibiting a governmental entity, business organization,
116 or individual from filing certain lawsuits made upon
117 specified bases against a unit owner; providing rights of
118 a unit owner who has been served with such a lawsuit;
119 providing procedures for the resolution of claims that
120 such suit violates certain provisions of state law;
121 providing for the award of damages and attorney's fees;
122 prohibiting associations from expending association funds
123 in prosecuting such a suit against a unit owner; amending
124 s. 718.1255, F.S.; revising legislative intent concerning
125 alternative dispute resolution; creating s. 718.1265,
126 F.S.; authorizing an association to exercise certain
127 powers in instances involving damage caused by an event
128 for which a state of emergency has been declared; limiting
129 the applicability of such powers; creating s. 718.127,
130 F.S.; requiring that all unit owners be provided written
131 notice of the appointment of a receiver; providing for the
132 delivery of such notice; amending s. 718.301, F.S.;
133 providing circumstances under which unit owners other than
134 a developer may elect not fewer than a majority of the
135 members of the board of administration of an association;
136 requiring a turnover inspection report; requiring that the
137 report contain certain information; amending s. 718.3025,
138 F.S.; requiring that maintenance and management services
139 contracts disclose certain information; amending s.
140 718.3026, F.S.; revising a provision authorizing certain
141 associations to opt out of provisions relating to
142 contracts for products and services; removing provisions
143 relating to competitive bid requirements for contracts
144 executed before a specified date; providing requirements
145 for any contract or transaction between an association and
146 one or more of its directors or any other entity in which
147 one or more of its directors are directors or officers or
148 have a financial interest; amending s. 718.303, F.S.;
149 providing that hearings regarding noncompliance with a
150 declaration be held before certain persons; amending s.
151 718.501, F.S.; providing authority and responsibilities of
152 the division; providing for enforcement actions brought by
153 the division in its own name; providing for the imposition
154 of penalties by the division; requiring that the division
155 issue a subpoena requiring production of certain requested
156 records under certain circumstances; providing for the
157 issuance of notice of a declaratory statement with respect
158 to documents governing a condominium community; requiring
159 that the division provide training and education for
160 condominium association board members and unit owners;
161 authorizing the division to include certain training
162 components and review or approve training programs offered
163 by providers; requiring that certain individuals cooperate
164 with the division in any investigation conducted by the
165 division; amending s. 718.5012, F.S.; providing additional
166 powers of the ombudsman; amending s. 718.50151, F.S.;
167 redesignating the Advisory Council on Condominiums as the
168 "Community Association Living Study Council"; providing
169 for the creation of the council; revising legislative
170 intent with respect to the appointment of council members;
171 providing functions of the council; amending s. 718.503,
172 F.S.; providing for disclosure of certain information upon
173 the sale of a unit by a nondeveloper; requiring the
174 provision of a governance form by the seller to the
175 prospective buyer; requiring that such form contain
176 certain information and a specified statement; providing
177 an effective date.
178
179 Be It Enacted by the Legislature of the State of Florida:
180
181      Section 1.  Section 468.431, Florida Statutes, is amended
182 to read:
183      468.431  Definitions.--  As used in this part:
184      (1)  "Community association" means a residential
185 homeowners' association in which membership is a condition of
186 ownership of a unit in a planned unit development, or of a lot
187 for a home or a mobile home, or of a townhouse, villa,
188 condominium, cooperative, or other residential unit which is
189 part of a residential development scheme and which is authorized
190 to impose a fee which may become a lien on the parcel.
191      (2)  "Community association management" means any of the
192 following practices requiring substantial specialized knowledge,
193 judgment, and managerial skill when done for remuneration and
194 when the association or associations served contain more than 10
195 50 units or have an annual budget or budgets in excess of
196 $100,000: controlling or disbursing funds of a community
197 association, preparing budgets or other financial documents for
198 a community association, assisting in the noticing or conduct of
199 community association meetings, and coordinating maintenance for
200 the residential development and other day-to-day services
201 involved with the operation of a community association. A person
202 who performs clerical or ministerial functions under the direct
203 supervision and control of a licensed manager or who is charged
204 only with performing the maintenance of a community association
205 and who does not assist in any of the management services
206 described in this subsection is not required to be licensed
207 under this part.
208      (3)  "Community association management firm" means a
209 corporation, limited liability company, partnership, trust,
210 association, sole proprietorship, or other similar organization
211 engaging in the business of community association management for
212 the purpose of providing any of the services described in
213 subsection (2).
214      (4)(3)  "Community association manager" means a natural
215 person who is licensed pursuant to this part to perform
216 community association management services.
217      (5)(4)  "Council" means the Regulatory Council of Community
218 Association Managers.
219      (6)(5)  "Department" means the Department of Business and
220 Professional Regulation.
221      Section 2.  Section 468.4315, Florida Statutes, is amended
222 to read:
223      468.4315  Regulatory Council of Community Association
224 Managers.--
225      (1)  The Regulatory Council of Community Association
226 Managers is created within the department and shall consist of
227 seven members appointed by the Governor and confirmed by the
228 Senate.
229      (a)  Five members of the council shall be licensed
230 community association managers, one of whom may shall be a
231 community association manager employed by a timeshare managing
232 entity as described in ss. 468.438 and 721.13, who have held an
233 active license for at least 5 years. The remaining two council
234 members shall be residents of this state, and must not be or
235 ever have been connected with the business of community
236 association management, and shall not be prohibited from serving
237 because the member is or has been a resident or board member of
238 a community association.
239      (b)  The Governor shall appoint members for terms of 4
240 years. Such members shall serve until their successors are
241 appointed. Members' service on the council shall begin upon
242 appointment and shall continue until their successors are
243 appointed.
244      (2)  The council may adopt rules relating to the licensure
245 examination, continuing education requirements, continuing
246 education providers, fees, and professional practice standards
247 to assist the department in carrying out the duties and
248 authorities conferred upon the department by this part.
249      (3) To the extent the council is authorized to exercise
250 functions otherwise exercised by a board pursuant to chapter
251 455, the provisions of chapter 455 and s. 20.165 relating to
252 regulatory boards shall apply, including, but not limited to,
253 provisions relating to board rules and the accountability and
254 liability of board members. All proceedings and actions of the
255 council are subject to the provisions of chapter 120. In
256 addition, the provisions of chapter 455 and s. 20.165 shall
257 apply to the department in carrying out the duties and
258 authorities conferred upon the department by this part.
259      (4)  The council may establish a public education program
260 relating to professional community association management.
261      (5)  Members of the council shall serve without
262 compensation but are entitled to receive per diem and travel
263 expenses pursuant to s. 112.061 while carrying out business
264 approved by the council.
265      (6)  The responsibilities of the council shall include, but
266 not be limited to:
267      (a)  Receiving input regarding issues of concern with
268 respect to community association management and recommendations
269 for changes in applicable laws.
270      (b)  Reviewing, evaluating, and advising the division
271 concerning revisions and adoption of rules affecting community
272 association management.
273      (c)  Recommending improvements, if needed, in the education
274 programs offered by the division.
275      Section 3.  Section 468.432, Florida Statutes, is amended
276 to read:
277      468.432  Licensure of community association managers and
278 community association management firms; exceptions.--
279      (1)  A person shall not manage or hold herself or himself
280 out to the public as being able to manage a community
281 association in this state unless she or he is licensed by the
282 department in accordance with the provisions of this part.
283 However, nothing in this part prohibits any person licensed in
284 this state under any other law or court rule from engaging in
285 the profession for which she or he is licensed.
286      (2)  As of January 1, 2009, a community association
287 management firm or other similar organization responsible for
288 the management of more than 10 units or a budget of $100,000 or
289 greater shall not engage or hold itself out to the public as
290 being able to engage in the business of community association
291 management in this state unless it is licensed by the department
292 as a community association management firm in accordance with
293 the provisions of this part.
294      (a)  A community association management firm or other
295 similar organization desiring to be licensed as a community
296 association management firm shall apply to the department on a
297 form approved by the department together with the application
298 and licensure fees required by s. 468.435(1)(a) and (c). Each
299 community association management firm applying for licensure
300 under this subsection must be actively registered and authorized
301 to do business in this state.
302      (b)  Each applicant shall designate on its application a
303 licensed community association manager who shall be required to
304 respond to all inquires from and investigations by the
305 department or division.
306      (c)  Each licensed community association management firm
307 shall notify the department within 30 days after any change of
308 information contained in the application upon which licensure is
309 based.
310      (d)  Community association management firm licenses shall
311 expire on September 30 of odd-numbered years and shall be
312 renewed every 2 years. An application for renewal shall be
313 accompanied by the renewal fee as required by s. 468.435(1)(d).
314      (e)  The department shall license each applicant whom the
315 department certifies as meeting the requirements of this
316 subsection.
317      (f)  If the license of at least one individual active
318 community association manager member is not in force, the
319 license of the community association management firm or other
320 similar organization is canceled automatically during that time.
321      (g)  Any community association management firm or other
322 similar organization agrees by being licensed that it will
323 employ only licensed persons in the direct provision of
324 community association management services as described in s.
325 468.431(3).
326      (2)  Nothing in this part prohibits a corporation,
327 partnership, trust, association, or other like organization from
328 engaging in the business of community association management
329 without being licensed if it employs licensed natural persons in
330 the direct provision of community association management
331 services. Such corporation, partnership, trust, association, or
332 other organization shall also file with the department a
333 statement on a form approved by the department that it submits
334 itself to the rules of the council and the department and the
335 provisions of this part which the department deems applicable.
336      Section 4.  Subsections (2) and (4) of section 468.433,
337 Florida Statutes, are amended to read:
338      468.433  Licensure by examination.--
339      (2)  The department shall examine each applicant who is at
340 least 18 years of age, who has successfully completed all
341 prelicensure education requirements, and who the department
342 certifies is of good moral character.
343      (a)  Good moral character means a personal history of
344 honesty, fairness, and respect for the rights of others and for
345 the laws of this state and nation.
346      (b)  The department may refuse to certify an applicant only
347 if:
348      1.  There is a substantial connection between the lack of
349 good moral character of the applicant and the professional
350 responsibilities of a community association manager; and
351      2.  The finding by the department of lack of good moral
352 character is supported by clear and convincing evidence; or
353      3.  The applicant is found to have provided management
354 services requiring licensure without the requisite license.
355      (c)  When an applicant is found to be unqualified for a
356 license because of a lack of good moral character, the
357 department shall furnish the applicant a statement containing
358 its findings, a complete record of the evidence upon which the
359 determination was based, and a notice of the rights of the
360 applicant to a rehearing and appeal.
361      (d)  The council shall establish by rule the required
362 amount of prelicensure education, which shall consist of not
363 more than 24 hours of in-person instruction by a department-
364 approved provider and which shall cover all areas of the
365 examination specified in subsection (3). Such instruction shall
366 be completed within 12 months prior to the date of the
367 examination. Prelicensure education providers shall be
368 considered continuing education providers for purposes of
369 establishing provider approval fees. A licensee shall not be
370 required to comply with the continuing education requirements of
371 s. 468.4337 prior to the first license renewal. The department
372 shall, by rule, set standards for exceptions to the requirement
373 of in-person instruction in cases of hardship or disability.
374      (4)  The department shall issue a license to practice in
375 this state as a community association manager to any qualified
376 applicant who successfully completes the examination in
377 accordance with this section and pays the appropriate fee.
378      Section 5.  Section 468.436, Florida Statutes, is amended
379 to read:
380      468.436  Disciplinary proceedings.--
381      (1)  The department shall investigate complaints and
382 allegations of a violation of this part or chapter 455, or any
383 rule adopted thereunder, filed against community association
384 managers or firms and forwarded from other divisions under the
385 Department of Business and Professional Regulation. After a
386 complaint is received, the department shall conduct its inquiry
387 with due regard to the interests of the affected parties. Within
388 30 days after receipt of a complaint, the department shall
389 acknowledge the complaint in writing and notify the complainant
390 whether or not the complaint is within the jurisdiction of the
391 department and whether or not additional information is needed
392 by the department from the complainant. The department shall
393 conduct an investigation and shall, within 90 days after receipt
394 of the original complaint or of a timely request for additional
395 information, take action upon the complaint. However, the
396 failure to complete the investigation within 90 days does not
397 prevent the department from continuing the investigation,
398 accepting or considering evidence obtained or received after 90
399 days, or taking administrative action if reasonable cause exists
400 to believe that a violation of this part or chapter 455, or a
401 rule of the department has occurred. If an investigation is not
402 completed within the time limits established in this subsection,
403 the department shall, on a monthly basis, notify the complainant
404 in writing of the status of the investigation. When reporting
405 its action to the complainant, the department shall inform the
406 complainant of any right to a hearing pursuant to ss. 120.569
407 and 120.57.
408      (2)(1)  The following acts constitute grounds for which the
409 disciplinary actions in subsection (4) (3) may be taken:
410      (a)  Violation of any provision of s. 455.227(1).
411      (b)1.  Violation of any provision of this part.
412      2.  Violation of any lawful order or rule rendered or
413 adopted by the department or the council.
414      3.  Being convicted of or pleading nolo contendere to a
415 felony in any court in the United States.
416      4.  Obtaining a license or certification or any other
417 order, ruling, or authorization by means of fraud,
418 misrepresentation, or concealment of material facts.
419      5.  Committing acts of gross misconduct or gross negligence
420 in connection with the profession.
421      6.  Contracting, on behalf of an association, with any
422 entity in which the licensee has a financial interest that is
423 not disclosed.
424      (3)(2)  The council shall specify by rule the acts or
425 omissions that constitute a violation of subsection (2) (1).
426      (4)(3)  When the department finds any community association
427 manager or firm guilty of any of the grounds set forth in
428 subsection (2) (1), it may enter an order imposing one or more
429 of the following penalties:
430      (a)  Denial of an application for licensure.
431      (b)  Revocation or suspension of a license.
432      (c)  Imposition of an administrative fine not to exceed
433 $5,000 for each count or separate offense.
434      (d)  Issuance of a reprimand.
435      (e)  Placement of the community association manager on
436 probation for a period of time and subject to such conditions as
437 the department specifies.
438      (f)  Restriction of the authorized scope of practice by the
439 community association manager.
440      (5)(4)  The department may shall reissue the license of a
441 disciplined community association manager or firm upon
442 certification by the department that the disciplined person or
443 firm has complied with all of the terms and conditions set forth
444 in the final order.
445      Section 6.  Paragraph (b) of subsection (1) and subsections
446 (12) and (13) of section 718.111, Florida Statutes are amended,
447 and paragraph (d) is added to subsection (1) of that section, to
448 read:
449      718.111  The association.--
450      (1)  CORPORATE ENTITY.--
451      (b)  A director of the association who is present at a
452 meeting of its board at which action on any corporate matter is
453 taken shall be presumed to have assented to the action taken
454 unless he or she votes against such action or abstains from
455 voting in respect thereto because of an asserted conflict of
456 interest. A director of the association who abstains from voting
457 on any action taken on any corporate matter shall be presumed to
458 have taken no position with regard to the action. Directors may
459 not vote by proxy or by secret ballot at board meetings, except
460 that officers may be elected by secret ballot. A vote or
461 abstention for each member present shall be recorded in the
462 minutes.
463      (d)  As required by s. 617.0830, an officer, director, or
464 agent shall discharge his or her duties in good faith, with the
465 care an ordinarily prudent person in a like position would
466 exercise under similar circumstances, and in a manner he or she
467 reasonably believes to be in the interests of the association.
468 An officer, director, or agent shall be liable for monetary
469 damages as provided in s. 617.0834 if such officer, director, or
470 agent breached or failed to perform his or her duties and the
471 breach of, or failure to perform, his or her duties constitutes
472 a violation of criminal law as provided in s. 617.0834;
473 constitutes a transaction from which the officer or director
474 derived an improper personal benefit, either directly or
475 indirectly; or constitutes recklessness or an act or omission
476 that was  in bad faith, with malicious purpose, or in a manner
477 exhibiting wanton and willful disregard of human rights, safety,
478 or property.
479      (12)  OFFICIAL RECORDS.--
480      (a)  From the inception of the association, the association
481 shall maintain each of the following items, when applicable,
482 which shall constitute the official records of the association:
483      1.  A copy of the plans, permits, warranties, and other
484 items provided by the developer pursuant to s. 718.301(4).
485      2.  A photocopy of the recorded declaration of condominium
486 of each condominium operated by the association and of each
487 amendment to each declaration.
488      3.  A photocopy of the recorded bylaws of the association
489 and of each amendment to the bylaws.
490      4.  A certified copy of the articles of incorporation of
491 the association, or other documents creating the association,
492 and of each amendment thereto.
493      5.  A copy of the current rules of the association.
494      6.  A book or books which contain the minutes of all
495 meetings of the association, of the board of administration
496 directors, and of unit owners, which minutes shall be retained
497 for a period of not less than 7 years.
498      7.  A current roster of all unit owners and their mailing
499 addresses, unit identifications, voting certifications, and, if
500 known, telephone numbers. The association shall also maintain
501 the electronic mailing addresses and the numbers designated by
502 unit owners for receiving notice sent by electronic transmission
503 of those unit owners consenting to receive notice by electronic
504 transmission. The electronic mailing addresses and numbers
505 provided by unit owners to receive notice by electronic
506 transmission shall be removed from association records when
507 consent to receive notice by electronic transmission is revoked.
508 However, the association is not liable for an erroneous
509 disclosure of the electronic mail address or the number for
510 receiving electronic transmission of notices.
511      8.  All current insurance policies of the association and
512 condominiums operated by the association.
513      9.  A current copy of any management agreement, lease, or
514 other contract to which the association is a party or under
515 which the association or the unit owners have an obligation or
516 responsibility.
517      10.  Bills of sale or transfer for all property owned by
518 the association.
519      11.  Accounting records for the association and separate
520 accounting records for each condominium which the association
521 operates. All accounting records shall be maintained for a
522 period of not less than 7 years. Any person who knowingly or
523 intentionally defaces or destroys accounting records required to
524 be maintained by this chapter, or who knowingly or intentionally
525 fails to create or maintain accounting records required to be
526 maintained by this chapter, is personally subject to a civil
527 penalty pursuant to s. 718.501(1)(d). The accounting records
528 shall include, but are not limited to:
529      a.  Accurate, itemized, and detailed records of all
530 receipts and expenditures.
531      b.  A current account and a monthly, bimonthly, or
532 quarterly statement of the account for each unit designating the
533 name of the unit owner, the due date and amount of each
534 assessment, the amount paid upon the account, and the balance
535 due.
536      c.  All audits, reviews, accounting statements, and
537 financial reports of the association or condominium.
538      d.  All contracts for work to be performed. Bids for work
539 to be performed shall also be considered official records and
540 shall be maintained by the association for a period of 1 year.
541      12.  Ballots, sign-in sheets, voting proxies, and all other
542 papers relating to voting by unit owners, which shall be
543 maintained for a period of 1 year from the date of the election,
544 vote, or meeting to which the document relates, notwithstanding
545 paragraph (b).
546      13.  All rental records, when the association is acting as
547 agent for the rental of condominium units.
548      14.  A copy of the current question and answer sheet as
549 described by s. 718.504.
550      15.  All other records of the association not specifically
551 included in the foregoing which are related to the operation of
552 the association.
553      16.  A copy of the inspection report as provided for in s.
554 718.301(4)(p).
555      (b)  The official records of the association shall be
556 maintained within the state for at least 7 years. The records of
557 the association shall be made available to a unit owner within
558 45 miles of the condominium property or within the county in
559 which the condominium property is located within 5 working days
560 after receipt of written request by the board or its designee.
561 However, such distance requirement does not apply to an
562 association governing a timeshare condominium. This paragraph
563 may be complied with by having a copy of the official records of
564 the association available for inspection or copying on the
565 condominium property or association property, or the association
566 may offer the option of making the records of the association
567 available to a unit owner either electronically via the Internet
568 or by allowing the records to be viewed in electronic format on
569 a computer screen and printed upon request.
570      (c)  The official records of the association are open to
571 inspection by any association member or the authorized
572 representative of such member at all reasonable times. The right
573 to inspect the records includes the right to make or obtain
574 copies, at the reasonable expense, if any, of the association
575 member. The association may adopt reasonable rules regarding the
576 frequency, time, location, notice, and manner of record
577 inspections and copying. The failure of an association to
578 provide the records within 10 working days after receipt of a
579 written request shall create a rebuttable presumption that the
580 association willfully failed to comply with this paragraph. A
581 unit owner who is denied access to official records is entitled
582 to the actual damages or minimum damages for the association's
583 willful failure to comply with this paragraph. The minimum
584 damages shall be $50 per calendar day up to 10 days, the
585 calculation to begin on the 11th working day after receipt of
586 the written request. The failure to permit inspection of the
587 association records as provided herein entitles any person
588 prevailing in an enforcement action to recover reasonable
589 attorney's fees from the person in control of the records who,
590 directly or indirectly, knowingly denied access to the records
591 for inspection. Any person who knowingly or intentionally
592 defaces or destroys accounting records that are required by this
593 chapter, or knowingly or intentionally fails to create or
594 maintain accounting records that are required by this chapter,
595 is personally subject to a civil penalty pursuant to s.
596 718.501(1)(d). The association shall maintain an adequate number
597 of copies of the declaration, articles of incorporation, bylaws,
598 and rules, and all amendments to each of the foregoing, as well
599 as the question and answer sheet provided for in s. 718.504 and
600 year-end financial information required in this section on the
601 condominium property to ensure their availability to unit owners
602 and prospective purchasers, and may charge its actual costs for
603 preparing and furnishing these documents to those requesting the
604 same. Notwithstanding the provisions of this paragraph, the
605 following records shall not be accessible to unit owners:
606      1.  Any record protected by the lawyer-client privilege as
607 described in s. 90.502; and any record protected by the work-
608 product privilege, including any record prepared by an
609 association attorney or prepared at the attorney's express
610 direction; which reflects a mental impression, conclusion,
611 litigation strategy, or legal theory of the attorney or the
612 association, and which was prepared exclusively for civil or
613 criminal litigation or for adversarial administrative
614 proceedings, or which was prepared in anticipation of imminent
615 civil or criminal litigation or imminent adversarial
616 administrative proceedings until the conclusion of the
617 litigation or adversarial administrative proceedings.
618      2.  Information obtained by an association in connection
619 with the approval of the lease, sale, or other transfer of a
620 unit.
621      3.  Medical records of unit owners.
622      4.  Social security numbers, driver's license numbers,
623 credit card numbers, and other personal identifying information
624 of any person.
625      (d)  The association shall prepare a question and answer
626 sheet as described in s. 718.504, and shall update it annually.
627      (e)1.  The association or its authorized agent is not
628 required to provide a prospective purchaser or lienholder with
629 information about the condominium or the association other than
630 information or documents required by this chapter to be made
631 available or disclosed. The association or its authorized agent
632 may charge a reasonable fee to the prospective purchaser,
633 lienholder, or the current unit owner for providing good faith
634 responses to requests for information by or on behalf of a
635 prospective purchaser or lienholder, other than that required by
636 law, if the fee does not exceed $150 plus the reasonable cost of
637 photocopying and any attorney's fees incurred by the association
638 in connection with the response.
639      2.  An association and its authorized agent are not liable
640 for providing such information in good faith pursuant to a
641 written request if the person providing the information includes
642 a written statement in substantially the following form: "The
643 responses herein are made in good faith and to the best of my
644 ability as to their accuracy."
645      (13)  FINANCIAL REPORTING.--Within 90 days after the end of
646 the fiscal year, or annually on a date provided in the bylaws,
647 the association shall prepare and complete, or contract for the
648 preparation and completion of, a financial report for the
649 preceding fiscal year. Within 21 days after the final financial
650 report is completed by the association or received from the
651 third party, but not later than 120 days after the end of the
652 fiscal year or other date as provided in the bylaws, the
653 association shall mail to each unit owner at the address last
654 furnished to the association by the unit owner, or hand deliver
655 to each unit owner, a copy of the financial report or a notice
656 that a copy of the financial report will be mailed or hand
657 delivered to the unit owner, without charge, upon receipt of a
658 written request from the unit owner. The division shall adopt
659 rules setting forth uniform accounting principles and standards
660 to be used by all associations and shall adopt rules addressing
661 financial reporting requirements for multicondominium
662 associations. The rules shall include, but not be limited to,
663 uniform accounting principles and standards for stating the
664 disclosure of at least a summary of the reserves, including
665 information as to whether such reserves are being funded at a
666 level sufficient to prevent the need for a special assessment
667 and, if not, the amount of assessments necessary to bring the
668 reserves up to the level necessary to avoid a special
669 assessment. The person preparing the financial reports shall be
670 entitled to rely on an inspection report prepared for or
671 provided to the association to meet the fiscal and fiduciary
672 standards of this chapter. In adopting such rules, the division
673 shall consider the number of members and annual revenues of an
674 association. Financial reports shall be prepared as follows:
675      (a)  An association that meets the criteria of this
676 paragraph shall prepare or cause to be prepared a complete set
677 of financial statements in accordance with generally accepted
678 accounting principles. The financial statements shall be based
679 upon the association's total annual revenues, as follows:
680      1.  An association with total annual revenues of $100,000
681 or more, but less than $200,000, shall prepare compiled
682 financial statements.
683      2.  An association with total annual revenues of at least
684 $200,000, but less than $400,000, shall prepare reviewed
685 financial statements.
686      3.  An association with total annual revenues of $400,000
687 or more shall prepare audited financial statements.
688      (b)1.  An association with total annual revenues of less
689 than $100,000 shall prepare a report of cash receipts and
690 expenditures.
691      2.  An association which operates less than 50 units,
692 regardless of the association's annual revenues, shall prepare a
693 report of cash receipts and expenditures in lieu of financial
694 statements required by paragraph (a).
695      3.  A report of cash receipts and disbursements must
696 disclose the amount of receipts by accounts and receipt
697 classifications and the amount of expenses by accounts and
698 expense classifications, including, but not limited to, the
699 following, as applicable: costs for security, professional and
700 management fees and expenses, taxes, costs for recreation
701 facilities, expenses for refuse collection and utility services,
702 expenses for lawn care, costs for building maintenance and
703 repair, insurance costs, administration and salary expenses, and
704 reserves accumulated and expended for capital expenditures,
705 deferred maintenance, and any other category for which the
706 association maintains reserves.
707      (c)  An association may prepare or cause to be prepared,
708 without a meeting of or approval by the unit owners:
709      1.  Compiled, reviewed, or audited financial statements, if
710 the association is required to prepare a report of cash receipts
711 and expenditures;
712      2.  Reviewed or audited financial statements, if the
713 association is required to prepare compiled financial
714 statements; or
715      3.  Audited financial statements if the association is
716 required to prepare reviewed financial statements.
717      (d)  If approved by a majority of the voting interests
718 present at a properly called meeting of the association, an
719 association may prepare or cause to be prepared:
720      1.  A report of cash receipts and expenditures in lieu of a
721 compiled, reviewed, or audited financial statement;
722      2.  A report of cash receipts and expenditures or a
723 compiled financial statement in lieu of a reviewed or audited
724 financial statement; or
725      3.  A report of cash receipts and expenditures, a compiled
726 financial statement, or a reviewed financial statement in lieu
727 of an audited financial statement.
728
729 Such meeting and approval must occur prior to the end of the
730 fiscal year and is effective only for the fiscal year in which
731 the vote is taken, except that the approval also may be
732 effective for the following fiscal year. With respect to an
733 association to which the developer has not turned over control
734 of the association, all unit owners, including the developer,
735 may vote on issues related to the preparation of financial
736 reports for the first 2 fiscal years of the association's
737 operation, beginning with the fiscal year in which the
738 declaration is recorded. Thereafter, all unit owners except the
739 developer may vote on such issues until control is turned over
740 to the association by the developer. Any audit or review
741 prepared under this section shall be paid for by the developer
742 if done prior to turnover of control of the association. An
743 association may not waive the financial reporting requirements
744 of this section for more than 3 consecutive years.
745      Section 7.  Subsection (2) of section 718.112, Florida
746 Statutes, is amended to read:
747      718.112  Bylaws.--
748      (2)  REQUIRED PROVISIONS.--The bylaws shall provide for the
749 following and, if they do not do so, shall be deemed to include
750 the following:
751      (a)  Administration.--
752      1.  The form of administration of the association shall be
753 described indicating the title of the officers and board of
754 administration and specifying the powers, duties, manner of
755 selection and removal, and compensation, if any, of officers and
756 boards. In the absence of such a provision, the board of
757 administration shall be composed of five members, except in the
758 case of a condominium which has five or fewer units, in which
759 case in a not-for-profit corporation the board shall consist of
760 not fewer than three members. In the absence of provisions to
761 the contrary in the bylaws, the board of administration shall
762 have a president, a secretary, and a treasurer, who shall
763 perform the duties of such officers customarily performed by
764 officers of corporations. Unless prohibited in the bylaws, the
765 board of administration may appoint other officers and grant
766 them the duties it deems appropriate. Unless otherwise provided
767 in the bylaws, the officers shall serve without compensation and
768 at the pleasure of the board of administration. Unless otherwise
769 provided in the bylaws, the members of the board shall serve
770 without compensation.
771      2.  When a unit owner files a written inquiry by certified
772 mail with the board of administration, the board shall respond
773 in writing to the unit owner within 30 days of receipt of the
774 inquiry. The board's response shall either give a substantive
775 response to the inquirer, notify the inquirer that a legal
776 opinion has been requested, or notify the inquirer that advice
777 has been requested from the division. If the board requests
778 advice from the division, the board shall, within 10 days of its
779 receipt of the advice, provide in writing a substantive response
780 to the inquirer. If a legal opinion is requested, the board
781 shall, within 60 days after the receipt of the inquiry, provide
782 in writing a substantive response to the inquiry. The failure to
783 provide a substantive response to the inquiry as provided herein
784 precludes the board from recovering attorney's fees and costs in
785 any subsequent litigation, administrative proceeding, or
786 arbitration arising out of the inquiry. The association may
787 through its board of administration adopt reasonable rules and
788 regulations regarding the frequency and manner of responding to
789 unit owner inquiries, one of which may be that the association
790 is only obligated to respond to one written inquiry per unit in
791 any given 30-day period. In such a case, any additional inquiry
792 or inquiries must be responded to in the subsequent 30-day
793 period, or periods, as applicable.
794      (b)  Quorum; voting requirements; proxies.--
795      1.  Unless a lower number is provided in the bylaws, the
796 percentage of voting interests required to constitute a quorum
797 at a meeting of the members shall be a majority of the voting
798 interests. Unless otherwise provided in this chapter or in the
799 declaration, articles of incorporation, or bylaws, and except as
800 provided in subparagraph (d)3., decisions shall be made by
801 owners of a majority of the voting interests represented at a
802 meeting at which a quorum is present.
803      2.  Except as specifically otherwise provided herein, after
804 January 1, 1992, unit owners may not vote by general proxy, but
805 may vote by limited proxies substantially conforming to a
806 limited proxy form adopted by the division. No voting interest
807 or consent right allocated to a unit owned by the association
808 shall be exercised or considered for any purpose, whether for a
809 quorum, an election, or otherwise. Limited proxies and general
810 proxies may be used to establish a quorum. Limited proxies shall
811 be used for votes taken to waive or reduce reserves in
812 accordance with subparagraph (f)2.; for votes taken to waive the
813 financial reporting requirements of s. 718.111(13); for votes
814 taken to amend the declaration pursuant to s. 718.110; for votes
815 taken to amend the articles of incorporation or bylaws pursuant
816 to this section; and for any other matter for which this chapter
817 requires or permits a vote of the unit owners. Except as
818 provided in paragraph (d), after January 1, 1992, no proxy,
819 limited or general, shall be used in the election of board
820 members. General proxies may be used for other matters for which
821 limited proxies are not required, and may also be used in voting
822 for nonsubstantive changes to items for which a limited proxy is
823 required and given. Notwithstanding the provisions of this
824 subparagraph, unit owners may vote in person at unit owner
825 meetings. Nothing contained herein shall limit the use of
826 general proxies or require the use of limited proxies for any
827 agenda item or election at any meeting of a timeshare
828 condominium association.
829      3.  Any proxy given shall be effective only for the
830 specific meeting for which originally given and any lawfully
831 adjourned meetings thereof. In no event shall any proxy be valid
832 for a period longer than 90 days after the date of the first
833 meeting for which it was given. Every proxy is revocable at any
834 time at the pleasure of the unit owner executing it.
835      4.  A member of the board of administration or a committee
836 may submit in writing his or her agreement or disagreement with
837 any action taken at a meeting that the member did not attend.
838 This agreement or disagreement may not be used as a vote for or
839 against the action taken and may not be used for the purposes of
840 creating a quorum.
841      5.  When any of the board or committee members meet by
842 telephone conference, those board or committee members attending
843 by telephone conference may be counted toward obtaining a quorum
844 and may vote by telephone. A telephone speaker must be used so
845 that the conversation of those board or committee members
846 attending by telephone may be heard by the board or committee
847 members attending in person as well as by any unit owners
848 present at a meeting.
849      (c)  Board of administration meetings.--Meetings of the
850 board of administration at which a quorum of the members is
851 present shall be open to all unit owners. Any unit owner may
852 tape record or videotape meetings of the board of
853 administration. The right to attend such meetings includes the
854 right to speak at such meetings with reference to all designated
855 agenda items. The division shall adopt reasonable rules
856 governing the tape recording and videotaping of the meeting. The
857 association may adopt written reasonable rules governing the
858 frequency, duration, and manner of unit owner statements.
859 Adequate notice of all meetings, which notice shall specifically
860 incorporate an identification of agenda items, shall be posted
861 conspicuously on the condominium property at least 48 continuous
862 hours preceding the meeting except in an emergency. If 20
863 percent of the voting interests petition the board to address an
864 item of business, the board shall at its next regular board
865 meeting or at a special meeting of the board, but not later than
866 60 days after the receipt of the petition, place the item on the
867 agenda. Any item not included on the notice may be taken up on
868 an emergency basis by at least a majority plus one of the
869 members of the board. Such emergency action shall be noticed and
870 ratified at the next regular meeting of the board. However,
871 written notice of any meeting at which nonemergency special
872 assessments, or at which amendment to rules regarding unit use,
873 will be considered shall be mailed, delivered, or electronically
874 transmitted to the unit owners and posted conspicuously on the
875 condominium property not less than 14 days prior to the meeting.
876 Evidence of compliance with this 14-day notice shall be made by
877 an affidavit executed by the person providing the notice and
878 filed among the official records of the association. Upon notice
879 to the unit owners, the board shall by duly adopted rule
880 designate a specific location on the condominium property or
881 association property upon which all notices of board meetings
882 shall be posted. If there is no condominium property or
883 association property upon which notices can be posted, notices
884 of board meetings shall be mailed, delivered, or electronically
885 transmitted at least 14 days before the meeting to the owner of
886 each unit. In lieu of or in addition to the physical posting of
887 notice of any meeting of the board of administration on the
888 condominium property, the association may, by reasonable rule,
889 adopt a procedure for conspicuously posting and repeatedly
890 broadcasting the notice and the agenda on a closed-circuit cable
891 television system serving the condominium association. However,
892 if broadcast notice is used in lieu of a notice posted
893 physically on the condominium property, the notice and agenda
894 must be broadcast at least four times every broadcast hour of
895 each day that a posted notice is otherwise required under this
896 section. When broadcast notice is provided, the notice and
897 agenda must be broadcast in a manner and for a sufficient
898 continuous length of time so as to allow an average reader to
899 observe the notice and read and comprehend the entire content of
900 the notice and the agenda. Notice of any meeting in which
901 regular or special assessments against unit owners are to be
902 considered for any reason shall specifically state contain a
903 statement that assessments will be considered and the nature,
904 estimated cost, and description of the purposes for any such
905 assessments. Meetings of a committee to take final action on
906 behalf of the board or make recommendations to the board
907 regarding the association budget are subject to the provisions
908 of this paragraph. Meetings of a committee that does not take
909 final action on behalf of the board or make recommendations to
910 the board regarding the association budget are subject to the
911 provisions of this section, unless those meetings are exempted
912 from this section by the bylaws of the association.
913 Notwithstanding any other law, the requirement that board
914 meetings and committee meetings be open to the unit owners is
915 inapplicable to meetings between the board or a committee and
916 the association's attorney, with respect to proposed or pending
917 litigation, when the meeting is held for the purpose of seeking
918 or rendering legal advice.
919      (d)  Unit owner meetings.--
920      1.  There shall be an annual meeting of the unit owners
921 held at the location provided in the association bylaws and, if
922 the bylaws are silent as to the location, the meeting shall be
923 held within 45 miles of the condominium property. However, such
924 distance requirement does not apply to an association governing
925 a timeshare condominium. Unless the bylaws provide otherwise, a
926 vacancy on the board caused by the expiration of a director's
927 term shall be filled by electing a new board member, and the
928 election shall be by secret ballot; however, if the number of
929 vacancies equals or exceeds the number of candidates, no
930 election is required. If there is no provision in the bylaws for
931 terms of the members of the board, The terms of all members of
932 the board shall expire upon the election of their successors at
933 the annual meeting and such board members may stand for
934 reelection unless otherwise permitted by the bylaws. In the
935 event that the bylaws permit staggered terms of no more than 2
936 years and upon approval of a majority of the total voting
937 interests, the association board members may serve 2-year
938 staggered terms. If no person is interested in or demonstrates
939 an intention to run for the position of a board member whose
940 term has expired according to the provisions of this
941 subparagraph, such board member whose term has expired shall be
942 automatically reappointed to the board of administration and
943 need not stand for reelection. In a condominium association of
944 more than 10 units, coowners of a unit may not serve as members
945 of the board of directors at the same time. Any unit owner
946 desiring to be a candidate for board membership shall comply
947 with subparagraph 3. A person who has been suspended or removed
948 by the division under this chapter, or who is delinquent in the
949 payment of any fee or assessment as provided in paragraph (n),
950 is not eligible for board membership. A person who has been
951 convicted of any felony in this state or by any court of record
952 in a the United States District or Territorial Court, or who has
953 been convicted of any offense in another jurisdiction that would
954 be considered a felony if committed in this state, and who has
955 not had his or her right to vote restored pursuant to law in the
956 jurisdiction of his or her residence is not eligible for board
957 membership unless such felon's civil rights have been restored
958 for a period of no less than 5 years as of the date on which
959 such person seeks election to the board. The validity of an
960 action by the board is not affected if it is later determined
961 that a member of the board is ineligible for board membership
962 due to having been convicted of a felony.
963      2.  The bylaws shall provide the method of calling meetings
964 of unit owners, including annual meetings. Written notice, which
965 notice must include an agenda, shall be mailed, hand delivered,
966 or electronically transmitted to each unit owner at least 14
967 days prior to the annual meeting and shall be posted in a
968 conspicuous place on the condominium property at least 14
969 continuous days preceding the annual meeting. Upon notice to the
970 unit owners, the board shall by duly adopted rule designate a
971 specific location on the condominium property or association
972 property upon which all notices of unit owner meetings shall be
973 posted; however, if there is no condominium property or
974 association property upon which notices can be posted, this
975 requirement does not apply. In lieu of or in addition to the
976 physical posting of notice of any meeting of the unit owners on
977 the condominium property, the association may, by reasonable
978 rule, adopt a procedure for conspicuously posting and repeatedly
979 broadcasting the notice and the agenda on a closed-circuit cable
980 television system serving the condominium association. However,
981 if broadcast notice is used in lieu of a notice posted
982 physically on the condominium property, the notice and agenda
983 must be broadcast at least four times every broadcast hour of
984 each day that a posted notice is otherwise required under this
985 section. When broadcast notice is provided, the notice and
986 agenda must be broadcast in a manner and for a sufficient
987 continuous length of time so as to allow an average reader to
988 observe the notice and read and comprehend the entire content of
989 the notice and the agenda. Unless a unit owner waives in writing
990 the right to receive notice of the annual meeting, such notice
991 shall be hand delivered, mailed, or electronically transmitted
992 to each unit owner. Notice for meetings and notice for all other
993 purposes shall be mailed to each unit owner at the address last
994 furnished to the association by the unit owner, or hand
995 delivered to each unit owner. However, if a unit is owned by
996 more than one person, the association shall provide notice, for
997 meetings and all other purposes, to that one address which the
998 developer initially identifies for that purpose and thereafter
999 as one or more of the owners of the unit shall so advise the
1000 association in writing, or if no address is given or the owners
1001 of the unit do not agree, to the address provided on the deed of
1002 record. An officer of the association, or the manager or other
1003 person providing notice of the association meeting, shall
1004 provide an affidavit or United States Postal Service certificate
1005 of mailing, to be included in the official records of the
1006 association affirming that the notice was mailed or hand
1007 delivered, in accordance with this provision.
1008      3.  The members of the board shall be elected by written
1009 ballot or voting machine. Proxies shall in no event be used in
1010 electing the board, either in general elections or elections to
1011 fill vacancies caused by recall, resignation, or otherwise,
1012 unless otherwise provided in this chapter. Not less than 60 days
1013 before a scheduled election, the association shall mail,
1014 deliver, or electronically transmit, whether by separate
1015 association mailing or included in another association mailing,
1016 delivery, or transmission, including regularly published
1017 newsletters, to each unit owner entitled to a vote, a first
1018 notice of the date of the election along with a certification
1019 form provided by the division attesting that he or she has read
1020 and understands, to the best of his or her ability, the
1021 governing documents of the association and the provisions of
1022 this chapter and any applicable rules. Any unit owner or other
1023 eligible person desiring to be a candidate for the board must
1024 give written notice to the association not less than 40 days
1025 before a scheduled election. Together with the written notice
1026 and agenda as set forth in subparagraph 2., the association
1027 shall mail, deliver, or electronically transmit a second notice
1028 of the election to all unit owners entitled to vote therein,
1029 together with a ballot which shall list all candidates. Upon
1030 request of a candidate, the association shall include an
1031 information sheet, no larger than 81/2 inches by 11 inches,
1032 which must be furnished by the candidate not less than 35 days
1033 before the election, along with the signed certification form
1034 provided for in this subparagraph, to be included with the
1035 mailing, delivery, or transmission of the ballot, with the costs
1036 of mailing, delivery, or electronic transmission and copying to
1037 be borne by the association. The association is not liable for
1038 the contents of the information sheets prepared by the
1039 candidates. In order to reduce costs, the association may print
1040 or duplicate the information sheets on both sides of the paper.
1041 The division shall by rule establish voting procedures
1042 consistent with the provisions contained herein, including rules
1043 establishing procedures for giving notice by electronic
1044 transmission and rules providing for the secrecy of ballots.
1045 Elections shall be decided by a plurality of those ballots cast.
1046 There shall be no quorum requirement; however, at least 20
1047 percent of the eligible voters must cast a ballot in order to
1048 have a valid election of members of the board. No unit owner
1049 shall permit any other person to vote his or her ballot, and any
1050 such ballots improperly cast shall be deemed invalid, provided
1051 any unit owner who violates this provision may be fined by the
1052 association in accordance with s. 718.303. A unit owner who
1053 needs assistance in casting the ballot for the reasons stated in
1054 s. 101.051 may obtain assistance in casting the ballot. The
1055 regular election shall occur on the date of the annual meeting.
1056 The provisions of this subparagraph shall not apply to timeshare
1057 condominium associations. Notwithstanding the provisions of this
1058 subparagraph, an election is not required unless more candidates
1059 file notices of intent to run or are nominated than board
1060 vacancies exist.
1061      4.  Any approval by unit owners called for by this chapter
1062 or the applicable declaration or bylaws, including, but not
1063 limited to, the approval requirement in s. 718.111(8), shall be
1064 made at a duly noticed meeting of unit owners and shall be
1065 subject to all requirements of this chapter or the applicable
1066 condominium documents relating to unit owner decisionmaking,
1067 except that unit owners may take action by written agreement,
1068 without meetings, on matters for which action by written
1069 agreement without meetings is expressly allowed by the
1070 applicable bylaws or declaration or any statute that provides
1071 for such action.
1072      5.  Unit owners may waive notice of specific meetings if
1073 allowed by the applicable bylaws or declaration or any statute.
1074 If authorized by the bylaws, notice of meetings of the board of
1075 administration, unit owner meetings, except unit owner meetings
1076 called to recall board members under paragraph (j), and
1077 committee meetings may be given by electronic transmission to
1078 unit owners who consent to receive notice by electronic
1079 transmission.
1080      6.  Unit owners shall have the right to participate in
1081 meetings of unit owners with reference to all designated agenda
1082 items. However, the association may adopt reasonable rules
1083 governing the frequency, duration, and manner of unit owner
1084 participation.
1085      7.  Any unit owner may tape record or videotape a meeting
1086 of the unit owners subject to reasonable rules adopted by the
1087 division.
1088      8.  Unless otherwise provided in the bylaws, any vacancy
1089 occurring on the board before the expiration of a term may be
1090 filled by the affirmative vote of the majority of the remaining
1091 directors, even if the remaining directors constitute less than
1092 a quorum, or by the sole remaining director. In the alternative,
1093 a board may hold an election to fill the vacancy, in which case
1094 the election procedures must conform to the requirements of
1095 subparagraph 3. unless the association governs 10 units or less
1096 and has opted out of the statutory election process, in which
1097 case the bylaws of the association control. Unless otherwise
1098 provided in the bylaws, a board member appointed or elected
1099 under this section shall fill the vacancy for the unexpired term
1100 of the seat being filled. Filling vacancies created by recall is
1101 governed by paragraph (j) and rules adopted by the division.
1102
1103 Notwithstanding subparagraphs (b)2. and (d)3., an association of
1104 10 or fewer units may, by the affirmative vote of a majority of
1105 the total voting interests, provide for different voting and
1106 election procedures in its bylaws, which vote may be by a proxy
1107 specifically delineating the different voting and election
1108 procedures. The different voting and election procedures may
1109 provide for elections to be conducted by limited or general
1110 proxy.
1111      (e)  Budget meeting.--
1112      1.  Any meeting at which a proposed annual budget of an
1113 association will be considered by the board or unit owners shall
1114 be open to all unit owners. At least 14 days prior to such a
1115 meeting, the board shall hand deliver to each unit owner, mail
1116 to each unit owner at the address last furnished to the
1117 association by the unit owner, or electronically transmit to the
1118 location furnished by the unit owner for that purpose a notice
1119 of such meeting and a copy of the proposed annual budget. An
1120 officer or manager of the association, or other person providing
1121 notice of such meeting, shall execute an affidavit evidencing
1122 compliance with such notice requirement, and such affidavit
1123 shall be filed among the official records of the association.
1124      2.a.  If a board adopts in any fiscal year an annual budget
1125 which requires assessments against unit owners which exceed 115
1126 percent of assessments for the preceding fiscal year, the board
1127 shall conduct a special meeting of the unit owners to consider a
1128 substitute budget if the board receives, within 21 days after
1129 adoption of the annual budget, a written request for a special
1130 meeting from at least 10 percent of all voting interests. The
1131 special meeting shall be conducted within 60 days after adoption
1132 of the annual budget. At least 14 days prior to such special
1133 meeting, the board shall hand deliver to each unit owner, or
1134 mail to each unit owner at the address last furnished to the
1135 association, a notice of the meeting. An officer or manager of
1136 the association, or other person providing notice of such
1137 meeting shall execute an affidavit evidencing compliance with
1138 this notice requirement, and such affidavit shall be filed among
1139 the official records of the association. Unit owners may
1140 consider and adopt a substitute budget at the special meeting. A
1141 substitute budget is adopted if approved by a majority of all
1142 voting interests unless the bylaws require adoption by a greater
1143 percentage of voting interests. If there is not a quorum at the
1144 special meeting or a substitute budget is not adopted, the
1145 annual budget previously adopted by the board shall take effect
1146 as scheduled.
1147      b.  Any determination of whether assessments exceed 115
1148 percent of assessments for the prior fiscal year shall exclude
1149 any authorized provision for reasonable reserves for repair or
1150 replacement of the condominium property, anticipated expenses of
1151 the association which the board does not expect to be incurred
1152 on a regular or annual basis, or assessments for betterments to
1153 the condominium property.
1154      c.  If the developer controls the board, assessments shall
1155 not exceed 115 percent of assessments for the prior fiscal year
1156 unless approved by a majority of all voting interests.
1157      (f)  Annual budget.--
1158      1.  The proposed annual budget of estimated revenues and
1159 common expenses shall be detailed and shall show the amounts
1160 budgeted by accounts and expense classifications, including, if
1161 applicable, but not limited to, those expenses listed in s.
1162 718.504(21). A multicondominium association shall adopt a
1163 separate budget of common expenses for each condominium the
1164 association operates and shall adopt a separate budget of common
1165 expenses for the association. In addition, if the association
1166 maintains limited common elements with the cost to be shared
1167 only by those entitled to use the limited common elements as
1168 provided for in s. 718.113(1), the budget or a schedule attached
1169 thereto shall show amounts budgeted therefor. If, after turnover
1170 of control of the association to the unit owners, any of the
1171 expenses listed in s. 718.504(21) are not applicable, they need
1172 not be listed.
1173      2.  In addition to annual operating expenses, the budget
1174 shall include reserve accounts for capital expenditures and
1175 deferred maintenance. These accounts shall include, but are not
1176 limited to, roof replacement, building painting, and pavement
1177 resurfacing, regardless of the amount of deferred maintenance
1178 expense or replacement cost, and for any other item for which
1179 the deferred maintenance expense or replacement cost exceeds
1180 $10,000. The amount to be reserved shall be computed by means of
1181 a formula which is based upon estimated remaining useful life
1182 and estimated replacement cost or deferred maintenance expense
1183 of each reserve item. The association may adjust replacement
1184 reserve assessments annually to take into account any changes in
1185 estimates or extension of the useful life of a reserve item
1186 caused by deferred maintenance. This subsection does not apply
1187 to an adopted budget in which the members of an association have
1188 determined, by a majority vote at a duly called meeting of the
1189 association, to provide no reserves or less reserves than
1190 required by this subsection. However, prior to turnover of
1191 control of an association by a developer to unit owners other
1192 than a developer pursuant to s. 718.301, the developer may vote
1193 to waive the reserves or reduce the funding of reserves for the
1194 first 2 fiscal years of the association's operation, beginning
1195 with the fiscal year in which the initial declaration is
1196 recorded, after which time reserves may be waived or reduced
1197 only upon the vote of a majority of all nondeveloper voting
1198 interests voting in person or by limited proxy at a duly called
1199 meeting of the association. If a meeting of the unit owners has
1200 been called to determine whether to waive or reduce the funding
1201 of reserves, and no such result is achieved or a quorum is not
1202 attained, the reserves as included in the budget shall go into
1203 effect. After the turnover, the developer may vote its voting
1204 interest to waive or reduce the funding of reserves.
1205      3.  Reserve funds and any interest accruing thereon shall
1206 remain in the reserve account or accounts, and shall be used
1207 only for authorized reserve expenditures unless their use for
1208 other purposes is approved in advance by a majority vote at a
1209 duly called meeting of the association. Prior to turnover of
1210 control of an association by a developer to unit owners other
1211 than the developer pursuant to s. 718.301, the developer-
1212 controlled association shall not vote to use reserves for
1213 purposes other than that for which they were intended without
1214 the approval of a majority of all nondeveloper voting interests,
1215 voting in person or by limited proxy at a duly called meeting of
1216 the association.
1217      4.  The only voting interests which are eligible to vote on
1218 questions that involve waiving or reducing the funding of
1219 reserves, or using existing reserve funds for purposes other
1220 than purposes for which the reserves were intended, are the
1221 voting interests of the units subject to assessment to fund the
1222 reserves in question. Proxy questions relating to waiving or
1223 reducing the funding of reserves or using existing reserve funds
1224 for purposes other than purposes for which the reserves were
1225 intended shall contain the following statement in capitalized,
1226 bold letters in a font size larger than any other used on the
1227 face of the proxy ballot: WAIVING OF RESERVES, IN WHOLE OR IN
1228 PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY
1229 RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED
1230 SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.
1231      (g)  Assessments.--The manner of collecting from the unit
1232 owners their shares of the common expenses shall be stated in
1233 the bylaws. Assessments shall be made against units not less
1234 frequently than quarterly in an amount which is not less than
1235 that required to provide funds in advance for payment of all of
1236 the anticipated current operating expenses and for all of the
1237 unpaid operating expenses previously incurred. Nothing in this
1238 paragraph shall preclude the right of an association to
1239 accelerate assessments of an owner delinquent in payment of
1240 common expenses. Accelerated assessments shall be due and
1241 payable on the date the claim of lien is filed. Such accelerated
1242 assessments shall include the amounts due for the remainder of
1243 the budget year in which the claim of lien was filed.
1244      (h)  Amendment of bylaws.--
1245      1.  The method by which the bylaws may be amended
1246 consistent with the provisions of this chapter shall be stated.
1247 If the bylaws fail to provide a method of amendment, the bylaws
1248 may be amended if the amendment is approved by the owners of not
1249 less than two-thirds of the voting interests.
1250      2.  No bylaw shall be revised or amended by reference to
1251 its title or number only. Proposals to amend existing bylaws
1252 shall contain the full text of the bylaws to be amended; new
1253 words shall be inserted in the text underlined, and words to be
1254 deleted shall be lined through with hyphens. However, if the
1255 proposed change is so extensive that this procedure would
1256 hinder, rather than assist, the understanding of the proposed
1257 amendment, it is not necessary to use underlining and hyphens as
1258 indicators of words added or deleted, but, instead, a notation
1259 must be inserted immediately preceding the proposed amendment in
1260 substantially the following language: "Substantial rewording of
1261 bylaw. See bylaw _____ for present text."
1262      3.  Nonmaterial errors or omissions in the bylaw process
1263 will not invalidate an otherwise properly promulgated amendment.
1264      (i)  Transfer fees.--No charge shall be made by the
1265 association or any body thereof in connection with the sale,
1266 mortgage, lease, sublease, or other transfer of a unit unless
1267 the association is required to approve such transfer and a fee
1268 for such approval is provided for in the declaration, articles,
1269 or bylaws. Any such fee may be preset, but in no event may such
1270 fee exceed $100 per applicant other than husband/wife or
1271 parent/dependent child, which are considered one applicant.
1272 However, if the lease or sublease is a renewal of a lease or
1273 sublease with the same lessee or sublessee, no charge shall be
1274 made. The foregoing notwithstanding, an association may, if the
1275 authority to do so appears in the declaration or bylaws, require
1276 that a prospective lessee place a security deposit, in an amount
1277 not to exceed the equivalent of 1 month's rent, into an escrow
1278 account maintained by the association. The security deposit
1279 shall protect against damages to the common elements or
1280 association property. Payment of interest, claims against the
1281 deposit, refunds, and disputes under this paragraph shall be
1282 handled in the same fashion as provided in part II of chapter
1283 83.
1284      (j)  Recall of board members.--Subject to the provisions of
1285 s. 718.301, any member of the board of administration may be
1286 recalled and removed from office with or without cause by the
1287 vote or agreement in writing by a majority of all the voting
1288 interests. A special meeting of the unit owners to recall a
1289 member or members of the board of administration may be called
1290 by 10 percent of the voting interests giving notice of the
1291 meeting as required for a meeting of unit owners, and the notice
1292 shall state the purpose of the meeting. Electronic transmission
1293 may not be used as a method of giving notice of a meeting called
1294 in whole or in part for this purpose.
1295      1.  If the recall is approved by a majority of all voting
1296 interests by a vote at a meeting, the recall will be effective
1297 as provided herein. The board shall duly notice and hold a board
1298 meeting within 5 full business days of the adjournment of the
1299 unit owner meeting to recall one or more board members. At the
1300 meeting, the board shall either certify the recall, in which
1301 case such member or members shall be recalled effective
1302 immediately and shall turn over to the board within 5 full
1303 business days any and all records and property of the
1304 association in their possession, or shall proceed as set forth
1305 in subparagraph 3.
1306      2.  If the proposed recall is by an agreement in writing by
1307 a majority of all voting interests, the agreement in writing or
1308 a copy thereof shall be served on the association by certified
1309 mail or by personal service in the manner authorized by chapter
1310 48 and the Florida Rules of Civil Procedure. The board of
1311 administration shall duly notice and hold a meeting of the board
1312 within 5 full business days after receipt of the agreement in
1313 writing. At the meeting, the board shall either certify the
1314 written agreement to recall a member or members of the board, in
1315 which case such member or members shall be recalled effective
1316 immediately and shall turn over to the board within 5 full
1317 business days any and all records and property of the
1318 association in their possession, or proceed as described in
1319 subparagraph 3.
1320      3.  If the board determines not to certify the written
1321 agreement to recall a member or members of the board, or does
1322 not certify the recall by a vote at a meeting, the board shall,
1323 within 5 full business days after the meeting, file with the
1324 division a petition for arbitration pursuant to the procedures
1325 in s. 718.1255. For the purposes of this section, the unit
1326 owners who voted at the meeting or who executed the agreement in
1327 writing shall constitute one party under the petition for
1328 arbitration. If the arbitrator certifies the recall as to any
1329 member or members of the board, the recall will be effective
1330 upon mailing of the final order of arbitration to the
1331 association. If the association fails to comply with the order
1332 of the arbitrator, the division may take action pursuant to s.
1333 718.501. Any member or members so recalled shall deliver to the
1334 board any and all records of the association in their possession
1335 within 5 full business days of the effective date of the recall.
1336      4.  If the board fails to duly notice and hold a board
1337 meeting within 5 full business days of service of an agreement
1338 in writing or within 5 full business days of the adjournment of
1339 the unit owner recall meeting, the recall shall be deemed
1340 effective and the board members so recalled shall immediately
1341 turn over to the board any and all records and property of the
1342 association.
1343      5.  If a vacancy occurs on the board as a result of a
1344 recall or removal and less than a majority of the board members
1345 are removed, the vacancy may be filled by the affirmative vote
1346 of a majority of the remaining directors, notwithstanding any
1347 provision to the contrary contained in this subsection. If
1348 vacancies occur on the board as a result of a recall and a
1349 majority or more of the board members are removed, the vacancies
1350 shall be filled in accordance with procedural rules to be
1351 adopted by the division, which rules need not be consistent with
1352 this subsection. The rules must provide procedures governing the
1353 conduct of the recall election as well as the operation of the
1354 association during the period after a recall but prior to the
1355 recall election.
1356      (k)  Arbitration.--There shall be a provision for mandatory
1357 nonbinding arbitration as provided for in s. 718.1255.
1358      (l)  Certificate of compliance.--There shall be a provision
1359 that a certificate of compliance from a licensed electrical
1360 contractor or electrician may be accepted by the association's
1361 board as evidence of compliance of the condominium units with
1362 the applicable fire and life safety code. Notwithstanding the
1363 provisions of chapter 633 or of any other code, statute,
1364 ordinance, administrative rule, or regulation, or any
1365 interpretation of the foregoing, an association, condominium, or
1366 unit owner is not obligated to retrofit the common elements or
1367 units of a residential condominium with a fire sprinkler system
1368 or other engineered lifesafety system in a building that has
1369 been certified for occupancy by the applicable governmental
1370 entity, if the unit owners have voted to forego such
1371 retrofitting and engineered lifesafety system by the affirmative
1372 vote of two-thirds of all voting interests in the affected
1373 condominium. However, a condominium association may not vote to
1374 forego the retrofitting with a fire sprinkler system of common
1375 areas in a high-rise building. For purposes of this subsection,
1376 the term "high-rise building" means a building that is greater
1377 than 75 feet in height where the building height is measured
1378 from the lowest level of fire department access to the floor of
1379 the highest occupiable story. For purposes of this subsection,
1380 the term "common areas" means any enclosed hallway, corridor,
1381 lobby, stairwell, or entryway. In no event shall the local
1382 authority having jurisdiction require completion of retrofitting
1383 of common areas with a sprinkler system before the end of 2014.
1384      1.  A vote to forego retrofitting may be obtained by
1385 limited proxy or by a ballot personally cast at a duly called
1386 membership meeting, or by execution of a written consent by the
1387 member, and shall be effective upon the recording of a
1388 certificate attesting to such vote in the public records of the
1389 county where the condominium is located. The association shall
1390 mail, hand deliver, or electronically transmit to each unit
1391 owner written notice at least 14 days prior to such membership
1392 meeting in which the vote to forego retrofitting of the required
1393 fire sprinkler system is to take place. Within 30 days after the
1394 association's opt-out vote, notice of the results of the opt-out
1395 vote shall be mailed, hand delivered, or electronically
1396 transmitted to all unit owners. Evidence of compliance with this
1397 30-day notice shall be made by an affidavit executed by the
1398 person providing the notice and filed among the official records
1399 of the association. After such notice is provided to each owner,
1400 a copy of such notice shall be provided by the current owner to
1401 a new owner prior to closing and shall be provided by a unit
1402 owner to a renter prior to signing a lease.
1403      2.  As part of the information collected annually from
1404 condominiums, the division shall require condominium
1405 associations to report the membership vote and recording of a
1406 certificate under this subsection and, if retrofitting has been
1407 undertaken, the per-unit cost of such work. The division shall
1408 annually report to the Division of State Fire Marshal of the
1409 Department of Financial Services the number of condominiums that
1410 have elected to forego retrofitting.
1411      (m)  Common elements; limited power to convey.--
1412      1.  With respect to condominiums created on or after
1413 October 1, 1994, the bylaws shall include a provision granting
1414 the association a limited power to convey a portion of the
1415 common elements to a condemning authority for the purpose of
1416 providing utility easements, right-of-way expansion, or other
1417 public purposes, whether negotiated or as a result of eminent
1418 domain proceedings.
1419      2.  In any case where the bylaws are silent as to the
1420 association's power to convey common elements as described in
1421 subparagraph 1., the bylaws shall be deemed to include the
1422 provision described in subparagraph 1.
1423      (n)  Director or officer delinquencies.--A director or
1424 officer more than 90 days delinquent in the payment of regular
1425 assessments shall be deemed to have abandoned the office,
1426 creating a vacancy in the office to be filled according to law.
1427      (o)  Director and officer offenses.--A director or officer
1428 charged with a felony theft or embezzlement offense involving
1429 the association's funds or property shall be removed from
1430 office, creating a vacancy in the office to be filled according
1431 to law. While such director or officer has such criminal charge
1432 pending, he or she may not be appointed or elected to a position
1433 as a director or officer. However, should the charges be
1434 resolved without a finding of guilt, the director of officer
1435 shall be reinstated for the remainder of his or her term of
1436 office, if any.
1437      Section 8.  Section 718.1124, Florida Statutes, is amended
1438 to read:
1439      718.1124  Failure to fill vacancies on board of
1440 administration sufficient to constitute a quorum; appointment of
1441 receiver upon petition of unit owner.--
1442      (1)  If an association fails to fill vacancies on the board
1443 of administration sufficient to constitute a quorum in
1444 accordance with the bylaws, any unit owner may give notice of
1445 his or her intent to apply to the circuit court within whose
1446 jurisdiction the condominium lies for the appointment of a
1447 receiver to manage the affairs of the association. The form of
1448 the notice shall be as follows:
1449
1450
NOTICE OF INTENT TO APPLY FOR RECEIVERSHIP
1451
1452 YOU ARE HEREBY NOTIFIED that the undersigned owner of
1453 a condominium unit in (name of condominium) intends to
1454 file a petition in the circuit court for appointment
1455 of a receiver to manage the affairs of the association
1456 on the grounds that the association has failed to fill
1457 vacancies on the board of administration sufficient to
1458 constitute a quorum. This petition will not be filed
1459 if the vacancies are filled within 30 days after the
1460 date on which this notice was sent or posted,
1461 whichever is later. If a receiver is appointed, the
1462 receiver shall have all of the powers of the board and
1463 shall be entitled to receive a salary and
1464 reimbursement of all costs and attorney's fees payable
1465 from association funds.
1466
1467 (name and address of petitioning unit owner)
1468
1469      (2)  The notice required by subsection (1) must be provided
1470 by At least 30 days prior to applying to the circuit court, the
1471 unit owner shall mail to the association by certified mail or
1472 personal delivery, must be posted and post in a conspicuous
1473 place on the condominium property, and must be provided by the
1474 unit owner to every other unit owner of the association by
1475 certified mail or personal delivery. The a notice must be posted
1476 and mailed or delivered at least 30 days prior to the filing of
1477 a petition seeking receivership. Notice by mail to a unit owner
1478 shall be sent to the address used by the county property
1479 appraiser for notice to the unit owner, except that where a unit
1480 owner's address is not publicly available the notice shall be
1481 mailed to the unit describing the intended action, giving the
1482 association the opportunity to fill the vacancies.
1483      (3)  If during such time the association fails to fill the
1484 vacancies within 30 days after the notice required by subsection
1485 (1) is posted and mailed or delivered, the unit owner may
1486 proceed with the petition.
1487      (4)  If a receiver is appointed, all unit owners shall be
1488 given written notice of such appointment as provided in s.
1489 718.127.
1490      (5)  The association shall be responsible for the salary of
1491 the receiver, court costs, and attorney's fees. The receiver
1492 shall have all powers and duties of a duly constituted board of
1493 administration and shall serve until the association fills
1494 vacancies on the board sufficient to constitute a quorum and the
1495 court relieves the receiver of the appointment.
1496      Section 9.  Paragraph (a) of subsection (2) and subsection
1497 (5) of section 718.113, Florida Statutes, are amended, and
1498 subsections (6) and (7) are added to that section, to read:
1499      718.113  Maintenance; limitation upon improvement; display
1500 of flag; hurricane shutters; display of religious decorations.--
1501      (2)(a)  Except as otherwise provided in this section, there
1502 shall be no material alteration or substantial additions to the
1503 common elements or to real property which is association
1504 property, except in a manner provided in the declaration as
1505 originally recorded or as amended under the procedures provided
1506 therein. If the declaration as originally recorded or as amended
1507 under the procedures provided therein does not specify the
1508 procedure for approval of material alterations or substantial
1509 additions, 75 percent of the total voting interests of the
1510 association must approve the alterations or additions. This
1511 paragraph is intended to clarify existing law and applies to
1512 associations existing on October 1, 2008.
1513      (5)  Each board of administration shall adopt hurricane
1514 shutter specifications for each building within each condominium
1515 operated by the association which shall include color, style,
1516 and other factors deemed relevant by the board. All
1517 specifications adopted by the board shall comply with the
1518 applicable building code. Notwithstanding any provision to the
1519 contrary in the condominium documents, if approval is required
1520 by the documents, a board shall not refuse to approve the
1521 installation or replacement of hurricane shutters conforming to
1522 the specifications adopted by the board.
1523      (a)  The board may, subject to the provisions of s.
1524 718.3026, and the approval of a majority of voting interests of
1525 the condominium, install hurricane shutters or hurricane
1526 protection that complies with or exceeds the applicable building
1527 code, or both, except that a vote of the owners is not required
1528 if the maintenance, repair, and replacement of hurricane
1529 shutters or other forms of hurricane protection are the
1530 responsibility of the association pursuant to the declaration of
1531 condominium and may maintain, repair, or replace such approved
1532 hurricane shutters, whether on or within common elements,
1533 limited common elements, units, or association property.
1534 However, where hurricane protection or laminated glass or window
1535 film architecturally designed to function as hurricane
1536 protection which complies with or exceeds the current applicable
1537 building code has been previously installed, the board may not
1538 install hurricane shutters or other hurricane protection.
1539      (b)  The association shall be responsible for the
1540 maintenance, repair, and replacement of the hurricane shutters
1541 or other hurricane protection authorized by this subsection if
1542 such hurricane shutters or other hurricane protection are the
1543 responsibility of the association pursuant to the declaration of
1544 condominium. If the hurricane shutters or other hurricane
1545 protection authorized by this subsection are the responsibility
1546 of the unit owners pursuant to the declaration of condominium,
1547 the responsibility for the maintenance, repair, and replacement
1548 of such items shall be the responsibility of the unit owner.
1549      (c)  The board may operate shutters installed pursuant to
1550 this subsection without permission of the unit owners only where
1551 such operation is necessary to preserve and protect the
1552 condominium property and association property. The installation,
1553 replacement, operation, repair, and maintenance of such shutters
1554 in accordance with the procedures set forth herein shall not be
1555 deemed a material alteration to the common elements or
1556 association property within the meaning of this section.
1557      (d)  Notwithstanding any provision to the contrary in the
1558 condominium documents, if approval is required by the documents,
1559 a board shall not refuse to approve the installation or
1560 replacement of hurricane shutters by a unit owner conforming to
1561 the specifications adopted by the board.
1562      (6)  As to any condominium building greater than three
1563 stories in height, at least every 5 years, and within 5 years if
1564 not available for inspection on October 1, 2008, the board shall
1565 have the condominium building inspected to provide a report
1566 under seal of an architect or engineer authorized to practice in
1567 this state attesting to required maintenance, useful life, and
1568 replacement costs of the common elements. However, if approved
1569 by a majority of the voting interests present at a properly
1570 called meeting of the association, an association may waive this
1571 requirement. Such meeting and approval must occur prior to the
1572 end of the 5-year period and is effective only for that 5-year
1573 period.
1574      (7)  An association may not refuse the request of a unit
1575 owner for a reasonable accommodation for the attachment on the
1576 mantle or frame of the door of the unit owner a religious object
1577 not to exceed 3 inches wide, 6 inches high, and 1.5 inches deep.
1578      Section 10.  Paragraph (e) of subsection (1) of section
1579 718.115, Florida Statutes, is amended to read:
1580      718.115  Common expenses and common surplus.--
1581      (1)
1582      (e)  The expense of installation, replacement, operation,
1583 repair, and maintenance of hurricane shutters or other hurricane
1584 protection by the board pursuant to s. 718.113(5) shall
1585 constitute a common expense as defined herein and shall be
1586 collected as provided in this section if the association is
1587 responsible for the maintenance, repair, and replacement of the
1588 hurricane shutters or other hurricane protection pursuant to the
1589 declaration of condominium. However, if the maintenance, repair,
1590 and replacement of the hurricane shutters or other hurricane
1591 protection is the responsibility of the unit owners pursuant to
1592 the declaration of condominium, the cost of the installation of
1593 the hurricane shutters or other hurricane protection shall not
1594 be a common expense, but shall be charged individually to the
1595 unit owners based on the cost of installation of the hurricane
1596 shutters or other hurricane protection appurtenant to the unit.
1597 Notwithstanding the provisions of s. 718.116(9), and regardless
1598 of whether or not the declaration requires the association or
1599 unit owners maintain, repair, or replace hurricane shutters or
1600 other hurricane protection a unit owner who has previously
1601 installed hurricane shutters in accordance with s. 718.113(5)
1602 other hurricane protection or laminated glass architecturally
1603 designed to function as hurricane protection, which hurricane
1604 shutters or other hurricane protection or laminated glass comply
1605 complies with the current applicable building code shall receive
1606 a credit equal to the pro rata portion of the assessed
1607 installation cost assigned to each unit. However, such unit
1608 owner shall remain responsible for the pro rata share of
1609 expenses for hurricane shutters or other hurricane protection
1610 installed on common elements and association property by the
1611 board pursuant to s. 718.113(5), and shall remain responsible
1612 for a pro rata share of the expense of the replacement,
1613 operation, repair, and maintenance of such shutters or other
1614 hurricane protection.
1615      Section 11.  Paragraph (a) of subsection (7) of section
1616 718.117, Florida Statutes, is amended to read:
1617      718.117  Termination of condominium.--
1618      (7)  NATURAL DISASTERS.--
1619      (a)  If, after a natural disaster, the identity of the
1620 directors or their right to hold office is in doubt, if they are
1621 deceased or unable to act, if they fail or refuse to act, or if
1622 they cannot be located, any interested person may petition the
1623 circuit court to determine the identity of the directors or, if
1624 found to be in the best interests of the unit owners, to appoint
1625 a receiver to conclude the affairs of the association after a
1626 hearing following notice to such persons as the court directs.
1627 Lienholders shall be given notice of the petition and have the
1628 right to propose persons for the consideration by the court as
1629 receiver. If a receiver is appointed, the court shall direct the
1630 receiver to provide to all unit owners written notice of his or
1631 her appointment as receiver. Such notice shall be mailed or
1632 delivered within 10 days after the appointment. Notice by mail
1633 to a unit owner shall be sent to the address used by the county
1634 property appraiser for notice to the unit owner.
1635      Section 12.  Subsection (4) is added to section 718.121,
1636 Florida Statutes, to read:
1637      718.121  Liens.--
1638      (4)  Except as otherwise provided in this chapter, no lien
1639 may be filed by the association against a condominium unit until
1640 30 days after the date on which a notice of intent to file a
1641 lien has been delivered to the owner by certified mail, return
1642 receipt requested, and by first-class United States mail to the
1643 owner at his or her last known address as reflected in the
1644 records of the association. However, if the address reflected in
1645 the records is outside the United States, then the notice must
1646 be sent by first-class United States mail to the unit and to the
1647 last known address by regular mail with international postage,
1648 which shall be deemed sufficient. Delivery of the notice shall
1649 be deemed given upon mailing as required by this subsection.
1650 Alternatively, notice shall be complete if served on the unit
1651 owner in the manner authorized by chapter 48 and the Florida
1652 Rules of Civil Procedure.
1653      Section 13.  Section 718.1224, Florida Statutes, is created
1654 to read:
1655      718.1224  Prohibition against SLAPP suits.--
1656      (1)  It is the intent of the Legislature to protect the
1657 right of condominium unit owners to exercise their rights to
1658 instruct their representatives and petition for redress of
1659 grievances before the various governmental entities of this
1660 state as protected by the First Amendment to the United States
1661 Constitution and s. 5, Art. I of the State Constitution. The
1662 Legislature recognizes that strategic lawsuits against public
1663 participation, or "SLAPP suits," as they are typically referred
1664 to, have occurred when association members are sued by
1665 individuals, business entities, or governmental entities arising
1666 out of a condominium unit owner's appearance and presentation
1667 before a governmental entity on matters related to the
1668 condominium association. However, it is the public policy of
1669 this state that governmental entities, business organizations,
1670 and individuals not engage in SLAPP suits, because such actions
1671 are inconsistent with the right of condominium unit owners to
1672 participate in the state's institutions of government.
1673 Therefore, the Legislature finds and declares that prohibiting
1674 such lawsuits by governmental entities, business entities, and
1675 individuals against condominium unit owners who address matters
1676 concerning their condominium association will preserve this
1677 fundamental state policy, preserve the constitutional rights of
1678 condominium unit owners, and ensure the continuation of
1679 representative government in this state. It is the intent of the
1680 Legislature that such lawsuits be expeditiously disposed of by
1681 the courts. As used in this subsection, the term "governmental
1682 entity" means the state, including the executive, legislative,
1683 and judicial branches of government; the independent
1684 establishments of the state, counties, municipalities,
1685 districts, authorities, boards, or commissions; or any agencies
1686 of these branches that are subject to chapter 286.
1687      (2)  A governmental entity, business organization, or
1688 individual in this state may not file or cause to be filed
1689 through its employees or agents any lawsuit, cause of action,
1690 claim, cross-claim, or counterclaim against a condominium unit
1691 owner without merit and solely because such condominium unit
1692 owner has exercised the right to instruct his or her
1693 representatives or the right to petition for redress of
1694 grievances before the various governmental entities of this
1695 state, as protected by the First Amendment to the United States
1696 Constitution and s. 5, Art. I of the State Constitution.
1697      (3)  A condominium unit owner sued by a governmental
1698 entity, business organization, or individual in violation of
1699 this section has a right to an expeditious resolution of a claim
1700 that the suit is in violation of this section. A condominium
1701 unit owner may petition the court for an order dismissing the
1702 action or granting final judgment in favor of that condominium
1703 unit owner. The petitioner may file a motion for summary
1704 judgment, together with supplemental affidavits, seeking a
1705 determination that the governmental entity's, business
1706 organization's, or individual's lawsuit has been brought in
1707 violation of this section. The governmental entity, business
1708 organization, or individual shall thereafter file its response
1709 and any supplemental affidavits. As soon as practicable, the
1710 court shall set a hearing on the petitioner's motion, which
1711 shall be held at the earliest possible time after the filing of
1712 the governmental entity's, business organization's, or
1713 individual's response. The court may award the condominium unit
1714 owner sued by the governmental entity, business organization, or
1715 individual actual damages arising from the governmental
1716 entity's, individual's, or business organization's violation of
1717 this section. A court may treble the damages awarded to a
1718 prevailing condominium unit owner and shall state the basis for
1719 the treble damages award in its judgment. The court shall award
1720 the prevailing party reasonable attorney's fees and costs
1721 incurred in connection with a claim that an action was filed in
1722 violation of this section.
1723      (4)  Condominium associations may not expend association
1724 funds in prosecuting a SLAPP suit against a condominium unit
1725 owner.
1726      Section 14.  Paragraph (b) of subsection (3) of section
1727 718.1255, Florida Statutes, is amended to read:
1728      718.1255  Alternative dispute resolution; voluntary
1729 mediation; mandatory nonbinding arbitration; legislative
1730 findings.--
1731      (3)  LEGISLATIVE FINDINGS.--
1732      (b)  The Legislature finds that the courts are becoming
1733 overcrowded with condominium and other disputes, and further
1734 finds that alternative dispute resolution has been making
1735 progress in reducing court dockets and trials and in offering a
1736 more efficient, cost-effective option to court litigation.
1737 However, the Legislature also finds that alternative dispute
1738 resolution should not be used as a mechanism to encourage the
1739 filing of frivolous or nuisance suits.
1740      Section 15.  Section 718.1265, Florida Statutes, is created
1741 to read:
1742      718.1265  Association emergency powers.--
1743      (1)  To the extent allowed by law and unless specifically
1744 prohibited by the declaration of condominium, the articles, or
1745 the bylaws of an association, and consistent with the provisions
1746 of s. 617.0830, the board of administration, in response to
1747 damage caused by an event for which a state of emergency is
1748 declared pursuant to s. 252.36 in the locale in which the
1749 condominium is located, may, but is not required to, exercise
1750 the following powers:
1751      (a)  Conduct board meetings and membership meetings with
1752 notice given as is practicable. Such notice may be given in any
1753 practicable manner, including publication, radio, United States
1754 mail, the Internet, public service announcements, and
1755 conspicuous posting on the condominium property or any other
1756 means the board deems reasonable under the circumstances. Notice
1757 of board decisions may be communicated as provided in this
1758 paragraph.
1759      (b)  Cancel and reschedule any association meeting.
1760      (c)  Name as assistant officers persons who are not
1761 directors, which assistant officers shall have the same
1762 authority as the executive officers to whom they are assistants
1763 during the state of emergency to accommodate the incapacity or
1764 unavailability of any officer of the association.
1765      (d)  Relocate the association's principal office or
1766 designate alternative principal offices.
1767      (e)  Enter into agreements with local counties and
1768 municipalities to assist counties and municipalities with debris
1769 removal.
1770      (f)  Implement a disaster plan before or immediately
1771 following the event for which a state of emergency is declared
1772 which may include, but is not limited to, shutting down or off
1773 elevators; electricity; water, sewer, or security systems; or
1774 air conditioners.
1775      (g)  Based upon advice of emergency management officials or
1776 upon the advice of licensed professionals retained by the board,
1777 determine any portion of the condominium property unavailable
1778 for entry or occupancy by unit owners, family members, tenants,
1779 guests, agents, or invitees to protect the health, safety, or
1780 welfare of such persons.
1781      (h)  Require the evacuation of the condominium property in
1782 the event of a mandatory evacuation order in the locale in which
1783 the condominium is located. Should any unit owner or other
1784 occupant of a condominium fail or refuse to evacuate the
1785 condominium property where the board has required evacuation,
1786 the association shall be immune from liability or injury to
1787 persons or property arising from such failure or refusal.
1788      (i)  Based upon advice of emergency management officials or
1789 upon the advice of licensed professionals retained by the board,
1790 determine whether the condominium property can be safely
1791 inhabited or occupied. However, such determination is not
1792 conclusive as to any determination of habitability pursuant to
1793 the declaration.
1794      (j)  Mitigate further damage, including taking action to
1795 contract for the removal of debris and to prevent or mitigate
1796 the spread of fungus, including, but not limited to, mold or
1797 mildew, by removing and disposing of wet drywall, insulation,
1798 carpet, cabinetry, or other fixtures on or within the
1799 condominium property, even if the unit owner is obligated by the
1800 declaration or law to insure or replace those fixtures and to
1801 remove personal property from a unit.
1802      (k)  Contract, on behalf of any unit owner or owners, for
1803 items or services for which the owners are otherwise
1804 individually responsible for, but which are necessary to prevent
1805 further damage to the condominium property. In such event, the
1806 unit owner or owners on whose behalf the board has contracted
1807 are responsible for reimbursing the association for the actual
1808 costs of the items or services, and the association may use its
1809 lien authority provided by s. 718.116 to enforce collection of
1810 the charges. Without limitation, such items or services may
1811 include the drying of units, the boarding of broken windows or
1812 doors, and the replacement of damaged air conditioners or air
1813 handlers to provide climate control in the units or other
1814 portions of the property.
1815      (l)  Regardless of any provision to the contrary and even
1816 if such authority does not specifically appear in the
1817 declaration of condominium, articles, or bylaws of the
1818 association, levy special assessments without a vote of the
1819 owners.
1820      (m)  Without unit owners' approval, borrow money and pledge
1821 association assets as collateral to fund emergency repairs and
1822 carry out the duties of the association when operating funds are
1823 insufficient. This paragraph does not limit the general
1824 authority of the association to borrow money, subject to such
1825 restrictions as are contained in the declaration of condominium,
1826 articles, or bylaws of the association.
1827      (2)  The special powers authorized under subsection (1)
1828 shall be limited to that time reasonably necessary to protect
1829 the health, safety, and welfare of the association and the unit
1830 owners and the unit owners' family members, tenants, guests,
1831 agents, or invitees and shall be reasonably necessary to
1832 mitigate further damage and make emergency repairs.
1833      Section 16.  Section 718.127, Florida Statutes, is created
1834 to read:
1835      718.127  Receivership notification.--Upon the appointment
1836 of a receiver by a court for any reason relating to a
1837 condominium association, the court shall direct the receiver to
1838 provide to all unit owners written notice of his or her
1839 appointment as receiver. Such notice shall be mailed or
1840 delivered within 10 days after the appointment. Notice by mail
1841 to a unit owner shall be sent to the address used by the county
1842 property appraiser for notice to the unit owner.
1843      Section 17.  Subsection (1) of section 718.301, Florida
1844 Statutes, is amended, and paragraph (p) is added to subsection
1845 (4) of that section, to read:
1846      718.301  Transfer of association control; claims of defect
1847 by association.--
1848      (1)  When unit owners other than the developer own 15
1849 percent or more of the units in a condominium that will be
1850 operated ultimately by an association, the unit owners other
1851 than the developer shall be entitled to elect no less than one-
1852 third of the members of the board of administration of the
1853 association. Unit owners other than the developer are entitled
1854 to elect not less than a majority of the members of the board of
1855 administration of an association:
1856      (a)  Three years after 50 percent of the units that will be
1857 operated ultimately by the association have been conveyed to
1858 purchasers;
1859      (b)  Three months after 90 percent of the units that will
1860 be operated ultimately by the association have been conveyed to
1861 purchasers;
1862      (c)  When all the units that will be operated ultimately by
1863 the association have been completed, some of them have been
1864 conveyed to purchasers, and none of the others are being offered
1865 for sale by the developer in the ordinary course of business;
1866      (d)  When some of the units have been conveyed to
1867 purchasers and none of the others are being constructed or
1868 offered for sale by the developer in the ordinary course of
1869 business; or
1870      (e)  When the developer files a petition seeking protection
1871 in bankruptcy;
1872      (f)  When a receiver for the developer is appointed by a
1873 circuit court and is not discharged within 30 days after such
1874 appointment; or
1875      (g)(e)  Seven years after recordation of the declaration of
1876 condominium; or, in the case of an association which may
1877 ultimately operate more than one condominium, 7 years after
1878 recordation of the declaration for the first condominium it
1879 operates; or, in the case of an association operating a phase
1880 condominium created pursuant to s. 718.403, 7 years after
1881 recordation of the declaration creating the initial phase,
1882
1883 whichever occurs first. The developer is entitled to elect at
1884 least one member of the board of administration of an
1885 association as long as the developer holds for sale in the
1886 ordinary course of business at least 5 percent, in condominiums
1887 with fewer than 500 units, and 2 percent, in condominiums with
1888 more than 500 units, of the units in a condominium operated by
1889 the association. Following the time the developer relinquishes
1890 control of the association, the developer may exercise the right
1891 to vote any developer-owned units in the same manner as any
1892 other unit owner except for purposes of reacquiring control of
1893 the association or selecting the majority members of the board
1894 of administration.
1895      (4)  At the time that unit owners other than the developer
1896 elect a majority of the members of the board of administration
1897 of an association, the developer shall relinquish control of the
1898 association, and the unit owners shall accept control.
1899 Simultaneously, or for the purposes of paragraph (c) not more
1900 than 90 days thereafter, the developer shall deliver to the
1901 association, at the developer's expense, all property of the
1902 unit owners and of the association which is held or controlled
1903 by the developer, including, but not limited to, the following
1904 items, if applicable, as to each condominium operated by the
1905 association:
1906      (p)  A report included in the official records, under seal
1907 of an architect or engineer authorized to practice in this
1908 state, attesting to required maintenance, useful life, and
1909 replacement costs of the following applicable common elements
1910 comprising a turnover inspection report:
1911      1.  Roof.
1912      2.  Structure.
1913      3.  Fireproofing and fire protection systems.
1914      4.  Elevators.
1915      5.  Heating and cooling systems.
1916      6.  Plumbing.
1917      7.  Electrical systems.
1918      8.  Swimming pool or spa and equipment.
1919      9.  Seawalls.
1920      10.  Pavement and parking areas.
1921      11.  Drainage systems.
1922      12.  Painting.
1923      13.  Irrigation systems.
1924      Section 18.  Paragraph (f) is added to subsection (1) of
1925 section 718.3025, Florida Statutes, to read:
1926      718.3025  Agreements for operation, maintenance, or
1927 management of condominiums; specific requirements.--
1928      (1)  No written contract between a party contracting to
1929 provide maintenance or management services and an association
1930 which contract provides for operation, maintenance, or
1931 management of a condominium association or property serving the
1932 unit owners of a condominium shall be valid or enforceable
1933 unless the contract:
1934      (f)  Discloses any financial or ownership interest a board
1935 member or any party providing maintenance or management services
1936 to the association holds with the contracting party.
1937      Section 19.  Section 718.3026, Florida Statutes, is amended
1938 to read:
1939      718.3026  Contracts for products and services; in writing;
1940 bids; exceptions.--Associations with 10 or fewer with less than
1941 100 units may opt out of the provisions of this section if two-
1942 thirds of the unit owners vote to do so, which opt-out may be
1943 accomplished by a proxy specifically setting forth the exception
1944 from this section.
1945      (1)  All contracts as further described herein or any
1946 contract that is not to be fully performed within 1 year after
1947 the making thereof, for the purchase, lease, or renting of
1948 materials or equipment to be used by the association in
1949 accomplishing its purposes under this chapter, and all contracts
1950 for the provision of services, shall be in writing. If a
1951 contract for the purchase, lease, or renting of materials or
1952 equipment, or for the provision of services, requires payment by
1953 the association on behalf of any condominium operated by the
1954 association in the aggregate that exceeds 5 percent of the total
1955 annual budget of the association, including reserves, the
1956 association shall obtain competitive bids for the materials,
1957 equipment, or services. Nothing contained herein shall be
1958 construed to require the association to accept the lowest bid.
1959      (2)(a)1.  Notwithstanding the foregoing, contracts with
1960 employees of the association, and contracts for attorney,
1961 accountant, architect, community association manager, timeshare
1962 management firm, engineering, and landscape architect services
1963 are not subject to the provisions of this section.
1964      2.  A contract executed before January 1, 1992, and any
1965 renewal thereof, is not subject to the competitive bid
1966 requirements of this section. If a contract was awarded under
1967 the competitive bid procedures of this section, any renewal of
1968 that contract is not subject to such competitive bid
1969 requirements if the contract contains a provision that allows
1970 the board to cancel the contract on 30 days' notice. Materials,
1971 equipment, or services provided to a condominium under a local
1972 government franchise agreement by a franchise holder are not
1973 subject to the competitive bid requirements of this section. A
1974 contract with a manager, if made by a competitive bid, may be
1975 made for up to 3 years. A condominium whose declaration or
1976 bylaws provides for competitive bidding for services may operate
1977 under the provisions of that declaration or bylaws in lieu of
1978 this section if those provisions are not less stringent than the
1979 requirements of this section.
1980      (b)  Nothing contained herein is intended to limit the
1981 ability of an association to obtain needed products and services
1982 in an emergency.
1983      (c)  This section shall not apply if the business entity
1984 with which the association desires to enter into a contract is
1985 the only source of supply within the county serving the
1986 association.
1987      (d)  Nothing contained herein shall excuse a party
1988 contracting to provide maintenance or management services from
1989 compliance with s. 718.3025.
1990      (3)  As to any contract or other transaction between an
1991 association and one or more of its directors or any other
1992 corporation, firm, association, or entity in which one or more
1993 of its directors are directors or officers or are financially
1994 interested:
1995      (a)  The association shall comply with the requirements of
1996 s. 617.0832.
1997      (b)  The disclosures required by s. 617.0832 shall be
1998 entered into the written minutes of the meeting.
1999      (c)  Approval of the contract or other transaction shall
2000 require an affirmative vote of two-thirds of the directors
2001 present.
2002      (d)  At the next regular or special meeting of the members,
2003 the existence of the contract or other transaction shall be
2004 disclosed to the members. Upon motion of any member, the
2005 contract or transaction shall be brought up for a vote and may
2006 be canceled by a majority vote of the members present. Should
2007 the members cancel the contract, the association shall only be
2008 liable for the reasonable value of goods and services provided
2009 up to the time of cancellation and shall not be liable for any
2010 termination fee, liquidated damages, or other form of penalty
2011 for such cancellation.
2012      Section 20.  Subsection (3) of section 718.303, Florida
2013 Statutes, is amended to read:
2014      718.303  Obligations of owners; waiver; levy of fine
2015 against unit by association.--
2016      (3)  If the declaration or bylaws so provide, the
2017 association may levy reasonable fines against a unit for the
2018 failure of the owner of the unit, or its occupant, licensee, or
2019 invitee, to comply with any provision of the declaration, the
2020 association bylaws, or reasonable rules of the association. No
2021 fine will become a lien against a unit. No fine may exceed $100
2022 per violation. However, a fine may be levied on the basis of
2023 each day of a continuing violation, with a single notice and
2024 opportunity for hearing, provided that no such fine shall in the
2025 aggregate exceed $1,000. No fine may be levied except after
2026 giving reasonable notice and opportunity for a hearing to the
2027 unit owner and, if applicable, its licensee or invitee. The
2028 hearing must be held before a committee of other unit owners who
2029 are neither board members nor persons residing in a board
2030 member's household. If the committee does not agree with the
2031 fine, the fine may not be levied. The provisions of this
2032 subsection do not apply to unoccupied units.
2033      Section 21.  Section 718.501, Florida Statutes, is amended
2034 to read:
2035      718.501  Authority, responsibility, Powers and duties of
2036 Division of Florida Land Sales, Condominiums, and Mobile
2037 Homes.--
2038      (1)  The Division of Florida Land Sales, Condominiums, and
2039 Mobile Homes of the Department of Business and Professional
2040 Regulation, referred to as the "division" in this part, in
2041 addition to other powers and duties prescribed by chapter 498,
2042 has the power to enforce and ensure compliance with the
2043 provisions of this chapter and rules promulgated pursuant hereto
2044 relating to the development, construction, sale, lease,
2045 ownership, operation, and management of residential condominium
2046 units. In performing its duties, the division has complete
2047 jurisdiction to investigate complaints and enforce compliance
2048 with the provisions of this chapter with respect to associations
2049 that are still under developer control and complaints against
2050 developers involving improper turnover or failure to turnover,
2051 pursuant to s. 718.301. However, after turnover has occurred,
2052 the division shall only have jurisdiction to investigate
2053 complaints related to financial issues, elections, and unit
2054 owner access to association records pursuant to s. 718.111(12).
2055 the following powers and duties:
2056      (a)  The division may make necessary public or private
2057 investigations within or outside this state to determine whether
2058 any person has violated this chapter or any rule or order
2059 hereunder, to aid in the enforcement of this chapter, or to aid
2060 in the adoption of rules or forms hereunder.
2061      (b)  The division may require or permit any person to file
2062 a statement in writing, under oath or otherwise, as the division
2063 determines, as to the facts and circumstances concerning a
2064 matter to be investigated.
2065      (c)  For the purpose of any investigation under this
2066 chapter, the division director or any officer or employee
2067 designated by the division director may administer oaths or
2068 affirmations, subpoena witnesses and compel their attendance,
2069 take evidence, and require the production of any matter which is
2070 relevant to the investigation, including the existence,
2071 description, nature, custody, condition, and location of any
2072 books, documents, or other tangible things and the identity and
2073 location of persons having knowledge of relevant facts or any
2074 other matter reasonably calculated to lead to the discovery of
2075 material evidence. Upon the failure by a person to obey a
2076 subpoena or to answer questions propounded by the investigating
2077 officer and upon reasonable notice to all persons affected
2078 thereby, the division may apply to the circuit court for an
2079 order compelling compliance.
2080      (d)  Notwithstanding any remedies available to unit owners
2081 and associations, if the division has reasonable cause to
2082 believe that a violation of any provision of this chapter or
2083 rule promulgated pursuant hereto has occurred, the division may
2084 institute enforcement proceedings in its own name against any
2085 developer, association, officer, or member of the board of
2086 administration, or its assignees or agents, as follows:
2087      1.  The division may permit a person whose conduct or
2088 actions may be under investigation to waive formal proceedings
2089 and enter into a consent proceeding whereby orders, rules, or
2090 letters of censure or warning, whether formal or informal, may
2091 be entered against the person.
2092      2.  The division may issue an order requiring the
2093 developer, association, developer-designated officer, or
2094 developer-designated member of the board of administration, or
2095 developer-designated its assignees or agents, community
2096 association manager, or community association management firm to
2097 cease and desist from the unlawful practice and take such
2098 affirmative action as in the judgment of the division will carry
2099 out the purposes of this chapter. Such affirmative action may
2100 include, but is not limited to, an order requiring a developer
2101 to pay moneys determined to be owed to a condominium
2102 association.
2103      3.  If a developer fails to pay any restitution determined
2104 by the division to be owed, plus any accrued interest at the
2105 highest rate permitted by law, within 30 days after expiration
2106 of any appellate time period of a final order requiring payment
2107 of restitution or the conclusion of any appeal thereof,
2108 whichever is later, the division shall bring an action in
2109 circuit or county court on behalf of any association, class of
2110 unit owners, lessees, or purchasers for restitution, declaratory
2111 relief, injunctive relief, or any other available remedy. The
2112 division may also temporarily revoke its acceptance of the
2113 filing for the developer to which the restitution relates until
2114 payment of restitution is made. The division may bring an action
2115 in circuit court on behalf of a class of unit owners, lessees,
2116 or purchasers for declaratory relief, injunctive relief, or
2117 restitution.
2118      4.  The division may impose a civil penalty against a
2119 developer or association, or its assignee or agent, for any
2120 violation of this chapter or a rule promulgated pursuant hereto.
2121 The division may impose a civil penalty individually against any
2122 officer or board member who willfully and knowingly violates a
2123 provision of this chapter, a rule adopted pursuant hereto, or a
2124 final order of the division; may order the removal of such
2125 individual as an officer or from the board of administration or
2126 as an officer of the association; and may prohibit such
2127 individual from serving as an officer or on the board of a
2128 community association for a period of time. The term "willfully
2129 and knowingly" means that the division informed the officer or
2130 board member that his or her action or intended action violates
2131 this chapter, a rule adopted under this chapter, or a final
2132 order of the division and that the officer or board member
2133 refused to comply with the requirements of this chapter, a rule
2134 adopted under this chapter, or a final order of the division.
2135 The division, prior to initiating formal agency action under
2136 chapter 120, shall afford the officer or board member an
2137 opportunity to voluntarily comply with this chapter, a rule
2138 adopted under this chapter, or a final order of the division. An
2139 officer or board member who complies within 10 days is not
2140 subject to a civil penalty. A penalty may be imposed on the
2141 basis of each day of continuing violation, but in no event shall
2142 the penalty for any offense exceed $5,000. By January 1, 1998,
2143 the division shall adopt, by rule, penalty guidelines applicable
2144 to possible violations or to categories of violations of this
2145 chapter or rules adopted by the division. The guidelines must
2146 specify a meaningful range of civil penalties for each such
2147 violation of the statute and rules and must be based upon the
2148 harm caused by the violation, the repetition of the violation,
2149 and upon such other factors deemed relevant by the division. For
2150 example, the division may consider whether the violations were
2151 committed by a developer or owner-controlled association, the
2152 size of the association, and other factors. The guidelines must
2153 designate the possible mitigating or aggravating circumstances
2154 that justify a departure from the range of penalties provided by
2155 the rules. It is the legislative intent that minor violations be
2156 distinguished from those which endanger the health, safety, or
2157 welfare of the condominium residents or other persons and that
2158 such guidelines provide reasonable and meaningful notice to the
2159 public of likely penalties that may be imposed for proscribed
2160 conduct. This subsection does not limit the ability of the
2161 division to informally dispose of administrative actions or
2162 complaints by stipulation, agreed settlement, or consent order.
2163 All amounts collected shall be deposited with the Chief
2164 Financial Officer to the credit of the Division of Florida Land
2165 Sales, Condominiums, and Mobile Homes Trust Fund. If a developer
2166 fails to pay the civil penalty and the amount deemed to be owed
2167 to the association, the division shall thereupon issue an order
2168 directing that such developer cease and desist from further
2169 operation until such time as the civil penalty is paid or may
2170 pursue enforcement of the penalty in a court of competent
2171 jurisdiction. If an association fails to pay the civil penalty,
2172 the division shall thereupon pursue enforcement in a court of
2173 competent jurisdiction, and the order imposing the civil penalty
2174 or the cease and desist order will not become effective until 20
2175 days after the date of such order. Any action commenced by the
2176 division shall be brought in the county in which the division
2177 has its executive offices or in the county where the violation
2178 occurred.
2179      5.  If a unit owner presents the division with proof that
2180 the unit owner has requested access to official records in
2181 writing by certified mail, and that after 10 days the unit owner
2182 again made the same request for access to official records in
2183 writing by certified mail, and that more than 10 days has
2184 elapsed since the second request and the association has still
2185 failed or refused to provide access to official records as
2186 required by this chapter, the division shall issue a subpoena
2187 requiring production of the requested records where the records
2188 are kept pursuant to s. 718.112.
2189      (e)  The division is authorized to prepare and disseminate
2190 a prospectus and other information to assist prospective owners,
2191 purchasers, lessees, and developers of residential condominiums
2192 in assessing the rights, privileges, and duties pertaining
2193 thereto.
2194      (f)  The division has authority to adopt rules pursuant to
2195 ss. 120.536(1) and 120.54 to implement and enforce the
2196 provisions of this chapter.
2197      (g)  The division shall establish procedures for providing
2198 notice to an association and the developer during the period
2199 where the developer controls the association when the division
2200 is considering the issuance of a declaratory statement with
2201 respect to the declaration of condominium or any related
2202 document governing in such condominium community.
2203      (h)  The division shall furnish each association which pays
2204 the fees required by paragraph (2)(a) a copy of this act,
2205 subsequent changes to this act on an annual basis, an amended
2206 version of this act as it becomes available from the Secretary
2207 of State's office on a biennial basis, and the rules promulgated
2208 pursuant thereto on an annual basis.
2209      (i)  The division shall annually provide each association
2210 with a summary of declaratory statements and formal legal
2211 opinions relating to the operations of condominiums which were
2212 rendered by the division during the previous year.
2213      (j)  The division shall provide training and educational
2214 programs for condominium association board members and unit
2215 owners. The training may, in the division's discretion, include
2216 web-based electronic media, and live training and seminars in
2217 various locations throughout the state. The division shall have
2218 the authority to review and approve education and training
2219 programs for board members and unit owners offered by providers
2220 and shall maintain a current list of approved programs and
2221 providers and shall make such list available to board members
2222 and unit owners in a reasonable and cost-effective manner.
2223      (k)  The division shall maintain a toll-free telephone
2224 number accessible to condominium unit owners.
2225      (l)  The division shall develop a program to certify both
2226 volunteer and paid mediators to provide mediation of condominium
2227 disputes. The division shall provide, upon request, a list of
2228 such mediators to any association, unit owner, or other
2229 participant in arbitration proceedings under s. 718.1255
2230 requesting a copy of the list. The division shall include on the
2231 list of volunteer mediators only the names of persons who have
2232 received at least 20 hours of training in mediation techniques
2233 or who have mediated at least 20 disputes. In order to become
2234 initially certified by the division, paid mediators must be
2235 certified by the Supreme Court to mediate court cases in either
2236 county or circuit courts. However, the division may adopt, by
2237 rule, additional factors for the certification of paid
2238 mediators, which factors must be related to experience,
2239 education, or background. Any person initially certified as a
2240 paid mediator by the division must, in order to continue to be
2241 certified, comply with the factors or requirements imposed by
2242 rules adopted by the division.
2243      (m)  When a complaint is made, the division shall conduct
2244 its inquiry with due regard to the interests of the affected
2245 parties. Within 30 days after receipt of a complaint, the
2246 division shall acknowledge the complaint in writing and notify
2247 the complainant whether the complaint is within the jurisdiction
2248 of the division and whether additional information is needed by
2249 the division from the complainant. The division shall conduct
2250 its investigation and shall, within 90 days after receipt of the
2251 original complaint or of timely requested additional
2252 information, take action upon the complaint. However, the
2253 failure to complete the investigation within 90 days does not
2254 prevent the division from continuing the investigation,
2255 accepting or considering evidence obtained or received after 90
2256 days, or taking administrative action if reasonable cause exists
2257 to believe that a violation of this chapter or a rule of the
2258 division has occurred. If an investigation is not completed
2259 within the time limits established in this paragraph, the
2260 division shall, on a monthly basis, notify the complainant in
2261 writing of the status of the investigation. When reporting its
2262 action to the complainant, the division shall inform the
2263 complainant of any right to a hearing pursuant to ss. 120.569
2264 and 120.57.
2265      (n)  Condominium association directors, officers, and
2266 employees; condominium developers; community association
2267 managers; and community association management firms have an
2268 ongoing duty to reasonably cooperate with the division in any
2269 investigation pursuant to this section. The division shall refer
2270 to local law enforcement authorities any person whom the
2271 division believes has altered, destroyed, concealed, or removed
2272 any record, document, or thing required to be kept or maintained
2273 by this chapter with the purpose to impair its verity or
2274 availability in the department's investigation.
2275      (2)(a)  Effective January 1, 1992, Each condominium
2276 association which operates more than two units shall pay to the
2277 division an annual fee in the amount of $4 for each residential
2278 unit in condominiums operated by the association. If the fee is
2279 not paid by March 1, then the association shall be assessed a
2280 penalty of 10 percent of the amount due, and the association
2281 will not have standing to maintain or defend any action in the
2282 courts of this state until the amount due, plus any penalty, is
2283 paid.
2284      (b)  All fees shall be deposited in the Division of Florida
2285 Land Sales, Condominiums, and Mobile Homes Trust Fund as
2286 provided by law.
2287      Section 22.  Subsection (9) of section 718.5012, Florida
2288 Statutes, is renumbered as subsection (10), and a new subsection
2289 (9) is added to that section to read:
2290      718.5012  Ombudsman; powers and duties.--The ombudsman
2291 shall have the powers that are necessary to carry out the duties
2292 of his or her office, including the following specific powers:
2293      (9)  To assist with the resolution of disputes between unit
2294 owners and the association or between unit owners when the
2295 dispute is not within the jurisdiction of the division to
2296 resolve.
2297      Section 23.  Section 718.50151, Florida Statutes, is
2298 amended to read:
2299      718.50151  Community Association Living Study Advisory
2300 Council; membership functions.--
2301      (1)  There is created the Community Association Living
2302 Study Advisory Council on Condominiums. The council shall
2303 consist of seven appointed members. Two members shall be
2304 appointed by the President of the Senate, two members shall be
2305 appointed by the Speaker of the House of Representatives, and
2306 three members shall be appointed by the Governor. At least One
2307 member that is appointed by the Governor may shall represent
2308 timeshare condominiums. The council shall be created as of
2309 October 1 every 5 years, commencing October 1, 2008, and shall
2310 exist for a 6-month term. Members shall be appointed to 2-year
2311 terms; however, one of the persons initially appointed by the
2312 Governor, by the President of the Senate, and by the Speaker of
2313 the House of Representatives shall be appointed to a 1-year
2314 term. The director of the division shall appoint serve as an ex
2315 officio nonvoting member. The Legislature intends that the
2316 persons appointed represent a cross-section of persons
2317 interested in community association condominium issues. The
2318 council shall be located within the division for administrative
2319 purposes. Members of the council shall serve without
2320 compensation but are entitled to receive per diem and travel
2321 expenses pursuant to s. 112.061 while on official business.
2322      (2)  The functions of the advisory council shall be to:
2323      (a)  Receive, from the public, input regarding issues of
2324 concern with respect to community association living, including
2325 living in condominiums, cooperatives, and homeowners'
2326 associations. The council shall make and recommendations for
2327 changes in the condominium law related to community association
2328 living. The issues that the council shall consider include, but
2329 are not limited to, the rights and responsibilities of the unit
2330 owners in relation to the rights and responsibilities of the
2331 association.
2332      (b)  Review, evaluate, and advise the division concerning
2333 revisions and adoption of rules affecting condominiums and
2334 cooperatives.
2335      (c)  Recommend improvements, if needed, in the education
2336 programs offered by the division.
2337      (d)  Review, evaluate, and advise the Legislature
2338 concerning revisions and improvements to the laws relating to
2339 condominiums, cooperatives, and homeowners' associations.
2340      (3)  The council may elect a chair and vice chair and such
2341 other officers as it may deem advisable. The council shall meet
2342 at the call of its chair, at the request of a majority of its
2343 membership, at the request of the division, or at such times as
2344 it may prescribe. A majority of the members of the council shall
2345 constitute a quorum. Council action may be taken by vote of a
2346 majority of the voting members who are present at a meeting
2347 where there is a quorum.
2348      Section 24.  Paragraph (a) of subsection (2) of section
2349 718.503, Florida Statutes, is amended to read:
2350      718.503  Developer disclosure prior to sale; nondeveloper
2351 unit owner disclosure prior to sale; voidability.--
2352      (2)  NONDEVELOPER DISCLOSURE.--
2353      (a)  Each unit owner who is not a developer as defined by
2354 this chapter shall comply with the provisions of this subsection
2355 prior to the sale of his or her unit. Each prospective purchaser
2356 who has entered into a contract for the purchase of a
2357 condominium unit is entitled, at the seller's expense, to a
2358 current copy of the declaration of condominium, articles of
2359 incorporation of the association, bylaws and rules of the
2360 association, financial information required by s. 718.111, and
2361 the document entitled "Frequently Asked Questions and Answers"
2362 required by s. 718.504. On and after January 1, 2009, the
2363 prospective purchaser shall also be entitled to receive from the
2364 seller a copy of a governance form. Such form shall be provided
2365 by the division summarizing governance of condominium
2366 associations. In addition to such other information as the
2367 division considers helpful to a prospective purchaser in
2368 understanding association governance, the governance form shall
2369 address the following subjects:
2370      1.  The role of the board in conducting the day-to-day
2371 affairs of the association on behalf of, and in the best
2372 interests of, the owners.
2373      2.  The board's responsibility to provide advance notice of
2374 board and membership meetings.
2375      3.  The rights of owners to attend and speak at board and
2376 membership meetings.
2377      4.  The responsibility of the board and of owners with
2378 respect to maintenance of the condominium property.
2379      5.  The responsibility of the board and owners to abide by
2380 the condominium documents, this chapter, rules adopted by the
2381 division, and reasonable rules adopted by the board.
2382      6.  Owners' rights to inspect and copy association records
2383 and the limitations on such rights.
2384      7.  Remedies available to owners with respect to actions by
2385 the board which may be abusive or beyond the board's power and
2386 authority.
2387      8.  The right of the board to hire a property management
2388 firm, subject to its own primary responsibility for such
2389 management.
2390      9.  The responsibility of owners with regard to payment of
2391 regular or special assessments necessary for the operation of
2392 the property and the potential consequences of failure to pay
2393 such assessments.
2394      10.  The voting rights of owners.
2395      11.  Rights and obligations of the board in enforcement of
2396 rules in the condominium documents and rules adopted by the
2397 board.
2398
2399 The governance form shall also include the following statement
2400 in conspicuous type: "This publication is intended as an
2401 informal educational overview of condominium governance. In the
2402 event of a conflict, the provisions of chapter 718, Florida
2403 Statutes, rules adopted by the Division of Florida Land Sales,
2404 Condominiums, and Mobile Homes of the Department of Business and
2405 Professional Regulation, the provisions of the condominium
2406 documents, and reasonable rules adopted by the condominium
2407 association's board of administration prevail over the contents
2408 of this publication."
2409      Section 25.  This act shall take effect October 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.

FINAL VERSION CS/HB 995, Engrossed 2


ORIGINAL FILED H 995

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